ONE of the most important aspects of a wage claim is how employees can prove that their employer owes them additional compensation for hours worked. If an employee is claiming unpaid overtime or that he or she never takes a meal break but works during lunch, it is useful for the employee to have kept accurate time records during the work period.
Although the law does not require employers to use time clocks, the law does require employers to keep accurate records. These records should be in ink or other indelible form that show when non-exempt employees begin and end each work period. The records must show the actual hours worked by the employee. Work schedules posted in advance cannot be used to compute the employee’s work hours.
Employers may ask employees to handwrite or type out their time on a timesheet/log-in sheet, or "punch in" and "punch out" on a time clock (ranging from the mechanical to the biometric). Whatever the method, the employer must ensure that the information is accurate. A legible printed copy of the recorded time must be provided when requested by the employee. Should any time-keeping device fail to work, the employer has the burden of proving the number of hours worked
There are three concerns that may arise in connection with time-keeping records: Rounding practices, erroneous time clock punches, and non-distinction of work and meal and rest periods.
Rounding off.
Employees should record their exact starting and stopping times; however, in computing time worked, an employer 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. For example, if the employee came in at 8:21, the employer may round the time off to 8:30. Rounding off is allowed only if this practice averages out over a period of time and does not result in a failure to compensate the employee for all time actually worked.
Erroneous time clock punches.
These may occur when employees come in early to or leave late from work and punch in and out accordingly. The employer may disregard the early or late clock punching and need not pay for them only if the employee did not do any work during those periods. For example, if the employee clocked in at 8:15 instead of the regular starting time of 8:30, but then spent the extra 15 minutes at the break room having coffee and chatting with other employees, then the employee need not be paid for the extra 15 minutes of coming in early. However, if the employee came in at 8:15 and started working right away, the 15 minutes should be paid.
Even though employers may disregard early punch ins or late punch outs, employers do have the obligation to maintain accurate records. Therefore, employers have the right to prohibit employees from habitually punching in early or punching out late. And since it may be difficult for employers to prove that the employee was not working early or working late, the employer can rigidly enforce its timekeeping policies. If erroneous early or late punching is discovered, employers may correct the records by obtaining a brief statement or notation from the employee voluntarily acknowledging the error and that no work was performed before or after the employee’s regular hours. This correction should be kept with the timecard.
Work Period versus Meal & Rest Periods.
Accurate time-keeping records must show the actual hours worked by non-exempt employees. Mandatory 10-minute rest periods for every 3 ½ hours worked do not have to be recorded. The mandatory 30-minute meal period for every 5 hours of work does not have to be recorded only if the business closes during a meal period. However, meal periods during which business operations do not cease must be recorded. Employers must also keep records of sleep periods for employees who are on a 24-hour shift if the sleep period is not paid by the employer.
Good time-keeping records can make or break an employee’s claim. If the employee feels that the employer is not keeping proper time, the employee may keep a personal diary of his or her hours worked. If an employee is uncertain as to whether he or she is paid correctly based on the employer’s time records, it would be wise for the employee to discuss the matter with a knowledgeable employment attorney.
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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.joesayaslaw.com or contact his office by telephone at (818) 291-0088.
( Published April 24, 2010 in Asian Journal Los Angeles p. C3 )
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