FLSA - I'm in trouble here

AnneHa

Help me, pleeeeze! Our payroll administrator returned from a seminar on the new FLSA regs. She is in a panic because she was informed that even though we have a policy dealing with the times employees can clock in - no more than seven minutes prior to scheduled start time, we may still be in trouble. The policy is strictly and uniformly enforced. Discipline is swift.

Now, she has been told by a highly regarded ER friendly law firm speaker that if an EE is on the premises twenty minutes before start time, does not clock in, does not perform any work, that we would still be liable under the new FLSA regs to pay him or her for that twenty minutes. This makes no sense to me. I pored over the new regs and saw nothing like this. The speaker’s contention is that it doesn’t matter what we can show on our time records, it’s all a matter of what the EE says. That leaves the ER totally defenseless even in the face of a strong, strictly enforced policy. I can see no alternative except to ask EE’s not to enter company property (including parking area) until seven minutes prior to their scheduled shift.

We are a public access organization (public library). Our facilities are ‘open to all’ about 70 hours per week, per location. If an EE wants to clock out at the end of her shift and then use our public access computers or check out books for her personal use, we were informed that we could be liable for that time as well.

Of course, the penalties he cited were outrageous (and true, I’m sure), and the payroll department is in an uproar. Help me out, here. Have we really come to this?


Anne in Ohio

System

I don't agree with the law firm speaker. The wage and hour division of DOL is not interested in ripping off the employer by calling every claim by the employee in his/her favor. Their conern is that employees are treated fairly and are being compensated for work performed; hence FLSA. The worker needs to establish that they were doing something compensable, not just hanging out to clock in. I agree with the speaker that the time record only shows what the company is paying for and, therefore does not excuse the fact that the employee may be working outside of those times. You only need to make sure that employees understand they cannot perform any work before clocking in or after clocking out. Train your supervisors that they can't allow it.

Half HR

I agree. You need to pay for hours worked, not hours present, so a policy that is followed of not working before clocking in should cover you.

The one exception I remember hearing about is when you require employees to wear particular gear for work, such as nuclear waste cleanup employees, then you need to pay them for the time they spend getting geared up.

Half HR

pork1

AnneHa: I would think and I believe, if you pay based on the time clock card consistently, your concerns for what the ee does before the time in or out, you will be documented to having followed the FLSA whether it is the new or old law. If your company is not consistent with paying strictly from the time card, you might be subject to concerns for the employees having hidden records and agendas for complaints based on "hanky-panky with the time cards" and what is officially recorded. The wage and hour auditors to not come to companies that have a content work force. If there is a mal-content work force and issues centered around the time clock concerns, your company may have some reason to worry about an audit. If all is peaceful, then keep it that way by continuing to be consistent with your discipline program and strickly enforce your company policy for "doing no work before or after clocking in or after clocking out"!

May you otherwise have a Blessed day.

PORK

Shadowfax

S Moll is right - be sure your policy makes it clean 'no work before clocking in' and I don't think you have a problem. I likje to refer to seimnar speakers as ' cheering from a safe distance'. You can say anything so long as you do not have to back it up or deal with it later. Check your own labor counsel and get assurance.

National Guard

To me, its like one of those worst case scenarios that actually happened ONLY ONCE so they have to tell you about it. Not that it happens a lot. It also sounds similar to the lawsuit against Wal-Mart(everybody likes to sue them!) which included ee allegations that they were coerced into working before and after clocking in and therefore lost wages.

LarryC

Anna, according to the FLSA, the waiting time you describe would be considered a "preliminary activity" and need not be compensated. They even give an example of an employee coming in early and waiting to start work as being a "preliminary activity". Unless you direct the employee to be there early, and your policy states quite the opposite, then you are ok. They go on to say that once an employee starts performing a principal activity which he/she is employed to perform, then the workday has begun. There are some gray areas such as clothes changing and such, but it sounds like you don't have those issues.

Advise your payroll administrator to knock back on the caffeine just a tad.

System

I'm not a lawyer, but the FLSA clearly says you have to pay ees for "hours worked," not hours they're in the building. Trouble is, if an ee claims that he worked 15 minutes before clocking in every day for the past two years. Can he prove it? Can you disprove it?

I don't want to pay people for getting coffee and gabbing for 10 minutes every morning.

James Sokolowski
HRhero.com

Rockie

I've not heard anything of this nature about having to pay employees if they are on the premises for 20 minutes or more. The only thing I can think of if the speaker might be considering the 20 minutes as a "break time". Since the employee's day has not even begun, I would not consider this time before work to be a break time.

There is an "engaged to be waiting" rule in FLSA which states if an employee is spending time in idleness or on call waiting for work at the employers' request, then employee must be paid. Example would be if a group of workers was waiting for a truck to come in for supplies in order for them to do their job. They are not actually performing work, but because they are required by the employer to wait for the truck, this is compensable time.

Another thing is if employees are required to change after they come to work into uniforms, etc. This would be compensable time.

In all the seminars and legal classes I have been involved in, I've never heard of this "rule".

Don D

Either your payroll administrator misunderstood or the seminar speaker was wrong. I agree with NatGardo that it was probably a worst case scenario type of comment. IN THE ABSENCE OF employer payroll records, it IS very likely, almost a certainty that the employee's word will stand in an investigation. The system you have in place is perfectly adequate to support your policy. Carry on.

AnneHa

Thanks to all.

I called our employment attorney and he also said the speaker was full of hot air. So, we're ignoring it.

I passed Larry C's advice on to the payroll administrator who burst into tears and said, "It's not the caffeine - I'm pregnant again!

Oh, joy.

Anne in Ohio

Don D

See there what you started Larry? With your jumping to conclusions. You may have incited a pregnancy discrimination or sexual harassment action. An apology is in order. Ann, send Larry the lady's email address.

LarryC

I'll apologize only if the payroll administrator is a lady. Otherwise I'll assume the payroll administrator is affectionally preferenced and send Anna my condolences.

WT

In FLSA cases, records are important. The employee version is accepted if the Employer has no records. They refuse to damage a potential employee case because of a lack of employer records. You have timeclock records. If you are on the up and up, I doubt you have any problems. Many employees want to come in early and have coffee or read the paper. You need to understand that some employers try to get employees to work off the clock. (Grocery stores have been notorious for this). If your managers are trying to make their budget or profit look good by having employees work before and after they punch in or out, your good records will not help you. An illegal practice exists.

ritamcguire

Does your reference to 7 minutes have any legal implication? Is there any rule that says how early an employee can clock in before his/her shift starts? We have many employees that are dropped off 30-40 minutes before their shift. Can they clock-in, wait in the breakroom, and start getting paid when their shift starts? Our time clock is actually set to allow them to clock-in anytime they want, but not get paid until their scheduled shift starts.

Shadowfax

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I would absolutely worry about your situation, because your records are of no use whatsoever. If someone has clocked in early, the presumption - which goes against you -is that the ee was working, and it will be next to impossible to prove he wasn't. When you have a DOL audit and your payroll doesn't compute with your clocked hours, you will have a problem. If someone is being dropped off early, you certainly may have some place for them to go and wait, but not on the clock.

Hot Damn! I see I've moved to Georgia again, I like this job! Opps! Maybe not!