Q. I USUALLY clock into work 30 minutes early or clock out 30 minutes late because we are required to do preliminary or clean up before and after our normal shift. My boss rounds off our hours to 8 hours. Am I entitled to be paid for the extra minutes I worked?
A. Yes, you are entitled to additional wages. Not only that, you are entitled to overtime wages at the overtime rate of 1½ times your regular rate, for any hour or fraction of an hour in excess of 8 hours per day.
When an employee’s time card entries reflect that an employee is on the job a few minutes more than the standard shift time, questions may arise as to how to compute the actual working time. As a general rule, employees who voluntarily come in before the start of their shift or remain after their shift ends, do not have to be paid. But they must be paid if they are allowed or permitted to work during that extra time.
Minor differences between the clock records and actual hours worked cannot ordinarily be avoided, but major discrepancies should be investigated since they raise a doubt as to the accuracy of the records of the hours actually worked. In recording working time, insubstantial or insignificant periods of time beyond the scheduled working hours may be disregarded.
However, an employer may not use this policy to justify not counting as hours worked any part of the employee’s fixed or regular working time. A difference of $4 per day, spread across 4 years of work or approximately $4,000 is not a trivial amount. If this affects 100 employees, then the employer’s violation is serious.
When the total number of hours does not exceed 8 hours per day, the time that exceeds the regular scheduled working hours should be paid at the employee’s regular rate. However, if the extra minutes bring the total number of hours worked in a day to over 8 hours, the extra minutes should be paid at the overtime rate of 1½ times the regular rate.
Such violations have resulted in employment lawsuits. One such case, Leyva v. Medline Industries, Inc., has just been given permission by the court to proceed to trial as a class.
The employer, Medline, is a manufacturer and distributor of medical products. Employees who worked at its distribution warehouses sued, claiming back wages and penalties against the employer.
Medline rounded its hourly employees’ start times in twenty-nine minute increments. For example, workers who clocked-in between 7:31am and 8am would be paid only from 8am onward even though they began work beforehand. Employees clocked-in before their scheduled start times because they had to complete tasks such as inspecting their machines and picking up scanners before they could begin their duties. The employees said that the rounding practices resulted in employees performing unpaid work before their scheduled start times, in violation of California law. Some employees also accused the employer of incorrectly computing their overtime pay by excluding their nondiscretionary bonuses from the overtime rates, and thus lowering their overtime pay.
Because Medline’s warehouse employees earn low wages, the amount each could claim for unpaid wages is relatively low (often less than $10,000). In noting that the employees experienced the same violations, the court concluded that a class action was a superior mechanism for them to try and recover their back wages plus penalties.
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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 employers. He has been selected as a Super Lawyer by the Los Angeles Magazine, and 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: wage and hour (overtime) litigation, serious personal injuries, wrongful death, insurance claims, and unfair business practices. His law firm is currently class counsel to thousands of employees seeking payment of wages in California courts. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088. Inquiries to his law office are welcome and at no cost.