Looking closely at your time records
Some employers do not pay for a “few minutes” of time worked by employees before or after their schedules. Five or ten minutes of work before or after the scheduled start and end of work schedule are not paid. The practice is called rounding down of employees’ clock-in and clock-out times. This violates California law which requires employers to pay their employees for all hours worked.
When time entries reflect that an employee is on the job a few minutes more than the shift time, questions arise as to computation of the work hours. Federal law allows “rounding” employee’s hours to calculate the number of hours worked. Following the de minimis doctrine, any insubstantial period of time beyond the scheduled working hours (for example 5 minutes of going through a bag check) may be disregarded. Such time may be rounded out to the nearest 5 minutes of the employee’s start or end time.
In contrast is California law which as mentioned mandates payment for all hours worked. ”Hours worked” means “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” To the extent that state law is more beneficial to workers, it then becomes applicable in this instance.
Related to the principle of compensating employees for all time worked, is the concern that small amounts of time that may, over the years, add up. Thus, courts may decide that the de minimis doctrine does not apply if employees regularly spend anywhere from 4 to10 minutes of their time each shift doing unpaid work. Rounding down or shaving minutes off the actual hours worked harms employees in the long run.
In a rounding down practice where several minutes are disregarded and unpaid, the loss to the employee may add up. An employee who clocks in an extra 5 minutes per day, 5 days a week, every week for 4 years has clocked in 5,200 minutes (or 86.67 hours) of unpaid time, which when paid at the California minimum wage of $15.50 per hour, entitles the employee to back wages in the amount of $1,343.39.
This is not de minimis for the ordinary employee.. As the California Supreme Court in a case once said, this is enough to pay a utility bill, buy weeks of groceries, or cover bus fares [or even cover a monthly apartment rental].
Though an extra couple of minutes here and there that are beyond the work hours may be unavoidable and can be disregarded, major discrepancies should be investigated. The practice, if left unchecked, not only raises doubts on the accuracy of the records of actual hours worked. It underpays workers who receive wages less than what they deserve under the law. If this occurs in the workplace, employees should be smart to consult with an experienced employment attorney to discuss their options.
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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, selected as Super Lawyer for 11 years by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]