Expert: Shirley McAllister, CPP, PHR - 7/18/2009

Question
QUESTION: I work part-time for a company in California. They use an automatic time clock and they round up and down to the nearest quarter-hour.

They say it's okay to clock in 7 minutes BEFORE the shift begins, (which we do and immediately begin working to get a head start), but they will NOT allow us to clock OUT even one minute before our scheduled shift ends. They do allow us to clock out up to 7 minutes AFTER out shift ends because they round down and they're getting free labor.

In my years of managing restaurants, I always thought legally if you round on one end, you must round in the same fashion on the opposite end. What they're doing is getting 7 minutes of labor free at the beginning of the shift, but if we want to clock out a few minutes early (since they round down anyway) they won't allow it.

Thanks

ANSWER: If they are rounding by a quarter of an hour, which is legal to do, than it should be rounded morning, evening , and lunch time. It should be rounded any time the time clock is punched.

Shirley

---------- FOLLOW-UP ----------

QUESTION: Shirley

Thanks for the quick reply. I read someplace that there really isn't a labor law regarding time clock rounding -- that it's up to the employer to do as they wish. Is there a definitive place I may find the info?

Most importantly I'd like to determine if my employer can legally allow us to clock in early (to their advantage) and also clock out up to 7 minutes late (also to their advantage), but they won't allow us to clock out a few minutes early (to our advantage). They have it to their advantage 100%.

Thanks,
Brent in Cali

Answer
The employer cannot stop someone from clocking in and out unless they are standing right there at the time clock. If you clock in or out than they are legally required to pay you for the time that is showing on the timecard.

Here is the answer from the US Department of Labor Website:http://www.dol.gov/esa/whd/opinion/FLSANA/2008/2008_05_15_07NA_FLSA.htm


As noted in 29 C.F.R. § 785.48(b), for enforcement purposes, the payment of wages based on recording and computing time to the nearest five minutes, or the nearest one tenth or quarter of an hour, will be accepted provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked. See Wage and Hour Opinion Letter November 7, 1994 (copy enclosed); see also Field Operation Handbook § 30a02(b).

As explained in 29 C.F.R. § 785.47, in recording working time, insubstantial or insignificant periods of time outside the scheduled working hours that cannot practically be precisely recorded may be disregarded. The courts have held that such periods of time are de minimis. This rule applies only where a few seconds or minutes of work are involved and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time. Where an employer fails to pay an employee for any part of the employee’s fixed or regular working time, however small, it would be considered a violation of the FLSA. See FLSA2004-8NA; see also Field Operation Handbook § 30a02(a).

shirley