Q:As an hourly employee, my work schedule is 9am to 5:30pm. We swipe our ID through a time clock when we start and end our work. My supervisor often asks me to come in early or leave late to finish work. However, the total work hours in my pay stub is still 40 per week. I was told that the time clock is pre-programmed and will not record any hours before or after my scheduled hours. Is this legal?
A:No, it is not. Programming the time clock to record only the hours that conform to the employee’s schedule violates the law. The recording system should reflect actual hours worked, not pre-determined schedules. Similarly, presenting the employee with a pre-filled time sheet which does not show the true hours worked is illegal.
California law mandates that employees be paid for all “hours worked.” A system that does not record all hours worked results in the underpayment of wages to employees.
Although the law does not require employers to use time clocks, the law requires employers to keep accurate records. These records should show when employees begin and end each work period. Employers may store time records via electronic means so long as the records are 1) retrievable in California and 2) may be printed in indelible format.
Whatever the method of recording time, the records must show the actual hours worked by the employee. Should any time-keeping device fail to work, the employer has the burden of proving the number of hours worked.
Some of the concerns that may arise in connection with time-keeping records include rounding practices and erroneous time clock punches, which the employer may use to avoid paying overtime to their employees.
Rounding practices
Employers may “round off” an employee’s starting and stopping times to the nearest five minutes or nearest one-tenth of one-quarter of an hour. Rounding off is not allowed if the practice results in a failure to compensate the employee for all time actually worked.
Erroneous punches
Erroneous punches may occur when employees come in early to or leave late from work. The employer may disregard the early or late clock punching only if the employee did not do any work during those periods. If they worked, they should be paid.
Prohibition on early or late punches
Employers have the right to prohibit employees from habitually punching in early or punching out late. With the newer and more sophisticated equipment for tracking and storing employee hours, employers may rigidly enforce their timekeeping policies. However, when employers manipulate the equipment to prohibit the recording of some hours worked to prevent the employee from recording overtime hours, rigid enforcement may have crossed the line to illegal conduct.
Unfortunately, employees cannot simply rely on the employer’s time-keeping system to substantiate claims for hours worked. This is true when employers engage in illegal conduct to reduce labor costs and increase profits.
If employees feel that the employer is not keeping proper time, they may keep a personal diary of their hours worked. When digital information on work hours is manipulated to justify lesser pay, the services of technology experts may have to be sought. Employees in this situation may be well-served to consult with an experienced employment attorney to discuss their options.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.