Special Report
Hunter1
808 Posts
[font size="1" color="#FF0000"]LAST EDITED ON 12-14-04 AT 11:01AM (CST)[/font][br][br]In the latest H R Executive "Special Report", there is a statement on page 44 that basically says that if an employee is working unauthorized overtime that you have to pay her the first time, but if you warn her that time, then you don't have to pay her the next time she works unauthorized overtime. Is there case law to support this position? My sense of the situation is that you'd still have to pay her the second time, but you'd continue the progressive discipline process and potentially suspend/terminate her. Still, the employee worked the hours and "suffered or permitted" seems to apply.
Edit: The Report further states on page 31 that if your hours are from 8:00 am to 5:00 pm and a non-exempt employee regularly clocks in and out five minutes before and after the shift that you would have to pay for the accumulated extra time. Again, unless there's case law to support this, I think the five minutes can be disregarded or taken care of by a tenth of an hour or quarter hour pay policy. All employees cannot be lined up at the time clock at exactly 8:00 and 5:00 with no early or late punches allowed.
Edit: The Report further states on page 31 that if your hours are from 8:00 am to 5:00 pm and a non-exempt employee regularly clocks in and out five minutes before and after the shift that you would have to pay for the accumulated extra time. Again, unless there's case law to support this, I think the five minutes can be disregarded or taken care of by a tenth of an hour or quarter hour pay policy. All employees cannot be lined up at the time clock at exactly 8:00 and 5:00 with no early or late punches allowed.
Comments
If I could write the report over again, I would omit the statement that it is OK to refuse payment for overtime worked. The rest of my discussion of unauthorized overtime (pages 43-45) explains at length that companies are obligated to prevent employees from working unauthorized overtime if they want to avoid overtime liability. It also suggests many ways for them to do so. What I should have said is that when an employee repeatedly violates a no-overtime rule, the employer may be able to dock her pay under a disciplinary policy that complies with the new FairPay regulations regarding disciplinary suspensions (discussed at pages 21-22 of the report).
As for your second concern, I stated that employers should pay employees overtime if they "regularly" clock in 5 minutes early and leave five minutes late. By "regularly," I meant an intentional and consistent habit or practice, not an isolated incident caused by crowding at the time clock. I would refer you to the following regulations:
29 C.F.R. 785.47 ("In recording working time under the Act, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. This rule applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee's fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him." (The regs contain numerous case citations, including Hawkins v. E. I. du Pont de Nemours & Co. (E.D. Va., 1955), which held that 10 minutes a day is not de minimis.))
29 CFR 785.48 ("It has been found that in some industries, particularly where time clocks are used, there has been the practice for many years of recording the employees' starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes this practice of computing working time will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.")
In short, I don't think that rounding hours worked up and down to the nearest quarter hour is the same thing as routinely disregarding the fact that an employee regularly works an extra ten minutes every day. The reg assumes that there will be times when the employee benefits from such a rounding practice, but under my scenario, she would not. Rather, under my scenario, such a practice would result in a failure to compensate the employee for all the time she actually worked.
Julie Athey
The owner needs to help with the clear understanding with this person, that she and all other employees are expected to assist in the record keeping of TIME ALLOWED OR PERMITTED TO SUFFER WORK. SHE HAS NO RIGHT TO VOLUNTEER HER PHYSICAL SELF NOR HER MENTAL BEING ON BEHALF OF THE EMPLOYER'S ABILITY TO DO COMMERCE. The company is liable for the time spent. We use a time clock and round to the nearest quarter hour up and down and that satisfies the need to pay for every single minute. 7/8 minutes of a 15 minute cycle will dictate the payment based on a quarter hour unit of time measurement.
Hope this helps.
PORK
I would imagine that if the DOL Wage Hour folks intended that employers tally up all these incidental minutes, we would see that in legal journals and the media.
E Wart