Let’s start with some FLSA basics.
- You have to track time because the Fair Labor Standards Act says you have to.
- You have to track time because this is the basis on which overtime is paid.
- Overtime is any time worked that exceeds 40 hours in a week. (Note: some states calculate OT on a daily basis of 8 hours.)
- Overtime only has to be paid to NONEXEMPT employees.
- The time record must be an accurate record of all time worked. Not a standard time that everyone works. It must be what that single employee actually worked.
- Working “off the clock” is illegal and will get you in trouble very quickly if you have an educated workforce.
Common mistakes that are made
There are some very common mistakes that are made that constantly get companies in trouble. They keep wage and hour attorneys happily very busy. Here are some of those mistakes:
- Making the assumption that because your stated hours of work are 8:30 am to 5 p.m. with a half hour for lunch, is what everyone works. Some people come early. Some stay late. Some don’t take that half hour for lunch. There is almost never anyone who day after day, week after week, has a time record that would say 8:30 am to 5 p.m. all the time. That SCREAMS inaccurate records.
- Saying that the employee was “not authorized” to work more than 40 hours. That makes NO difference. They worked it you have to pay for it. You have to control overtime abuse with discipline not by withholding pay for hours worked.
- Automatically deducting for a lunch period. If you have a timekeeping system that makes an automatic deduction then you may be in trouble. If an employee works during their meal period, then they due compensation for that time. Under the FLSA you are not required to give a meal break, but if you do the employee must be fully relieved of ALL duties in order for you to make it noncompensable time.
There are also a whole set of other issues that are beyond the scope of this blog post, such as donning and doffing rules and travel time. All of those things may not amount to much time for any single incident, but over the week may account for a couple of hours and at 1 ½ time for overtime over a year that can be quite a chunk of change, for both you and the employee. Hence companies get sued when they don’t pay it.
Social media and telecommuting use is the new problem
One of the growing areas that are providing employers difficulties is in the ease of use of telecommuting. Employees working offsite or accessing their work from their smart phone not only causes problems of extra time being worked but also providing a challenge of tracking. Employers are tasked with creating policies and systems to guide when an employee works and how much time is actually spent doing this. This can be easy if the employee is connecting through work owned equipment, not so easy if they are using personal equipment.
The case that started this rant
The example case actually dealt with an FMLA lawsuit. Cogent to the case was the number of hours the employee worked. He was denied FMLA because the employer said he did not work the requisite 1250 hour, rather he work 1247 hours.( A bit nit-picky in my mind) They based this on the language in a contract that said the standard work day was 7.25 hours. He claimed he worked more. He won, mainly because the employer did not have an accurate record of when he worked. (Stupid HR practice)
Accurate records, effective policies and authoritative administration will save you many headaches and potentially thousands of dollars.
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