Laws about calculating work hours

[snailboy]

@ivn1188

ETA: By the way, it is a civil suit that you would file. The government might or might not investigate, but generally levy fines, etc, and don’t collect for you (though it’s good evidence in your civil suit). But I wouldn’t go running to your boss yet, because the law is on his side with the facts given. You should talk to a Texas attorney, though.

I’m not worried about getting paid what they’ve already taken from me. That wouldn’t amount to lawyer’s fees. Just the same, I’d like them to stop this blatant screwing. It’s more about the dishonesty than the money. And much of the time it is overtime I’m getting shorted on.

[Joey_P]

@Spezza

I worked at Tim Hortons recently and their proprietary software did the same sort of rounding as the OP has described. For an additional example, my shift was 6 AM to 2 PM - 8 hours. I could punch in at 5:46 AM and punch out at 6:14 and my time card would round it to 6 AM/2 PM - 8 hour; regardless of the fact I worked 8:28 minutes. It was blatant theft.

They do actually make regular punch in punch out time clocks that do that automatically. The reasoning behind it (legit or not) is that if your shift starts at 6am you can get to work as early as you need to, punch in, get ready for work and be at your station at 6am ready to work. A lot of those clocks, and even many that don’t do that, can also be automatically set so that if you work more then X hours, it’ll automatically deduct 30 mins for your break, whether you take it or not.

[ivn1188]

@Really_Not_All_That_Bright

I only scanned the Klinghoffer decision you linked to but it doesn’t appear to say anything about the situation being discussed here except as it relates to overtime pay- unless you’re talking about this:

(QUOTE OMITTED)

…which appears to be irrelevant to the case actually being decided, and therefore not binding, unless I’m missing something.

Paragraph 23:
We concluded that 29 U.S.C. 206(a) was not violated, because each employee received during each week compensation equal to or exceeding the product of the total number of hours worked and the statutory minimum hourly rate.

There are a lot of cases that follow, here are some recent ones:
Ladegaard v. Hard Rock Concrete Cutters, 2004 WL 1882449 (N.D. Ill)
Welding v. Bios Corp., 353 F.3d 1214, 1219 (C.A.10 (Okla.) 2004)
Fowler v. Incor, 2009 WL 366342 (E.D. Oklahoma 2009) (slip opinion)

[Kimmy_Gibbler]

@ivn1188

This is not accurate. Employees must be paid a minimum wage for all hours worked. If you make more than the minimum wage, and work one or two “free” hours in a week, as long as your average hourly rate does not drop below the minimum wage, then the employer is not violating the FLSA nor the rules promulgated by the DOL. Thus, the regulations about timeclocks are only important for overtime and for contractually obligated pay.

see US v Klinghoffer, which is still the accepted rule even after 50 years.

Texas probably hews closely to the federal interp of the FLSA under whatever Texas statutes there are (Most states have a “State law is just like the FLSA” statute), but I’m not going to check Texas statutes.

Now, if you are working more than 40 hours a week, you have an overtime claim (say you clock exactly 40 but worked 41). There are some exceptions to the overtime rule, but it’s mostly for specific jobs.

If you have an employment contract or collective bargaining agreement, then it controls – if the contract says X pay/hr you are entitled to that.

I’d say you don’t have a claim at all barring some specific Texas statute that goes against the dominant interpretation of the FLSA. You won’t win under FLSA, though, unless you are missing out on overtime.

ETA: By the way, it is a civil suit that you would file. The government might or might not investigate, but generally levy fines, etc, and don’t collect for you (though it’s good evidence in your civil suit). But I wouldn’t go running to your boss yet, because the law is on his side with the facts given. You should talk to a Texas attorney, though.

Klinghoffer does stand for the proposition that an employee who has worked forty hours or less and whose hours have been properly recorded in a given week only has a claim under the FLSA if he has been paid less than the actual hours worked multiplied by the great of the federal or employment state minimum wage.

Nevertheless, you’ll note that in my post above I do not address the rate at which the employee must be compensated. The FLSA does require accurate recordkeeping (FLSA § 211(c); 29 C.F.R. § 785.48) and payment of a minimum wage for actual hours worked. It is this recordkeeping obligation that the employer has run afoul of and about which responsibility I would inform them. If they decide to remunerate their employees at the agreed-upon wage for hours recorded in conformity with the CFR, I think that is a wise idea: the FLSA may require only a minimum wage payment (although I do not know if Klinghoffer is followed in the Fifth Circuit, however, one district court contended that Klinghoffer had been accepted by “most courts of appeal”), but the common law of contract certainly does not permit unilateral, retroactive alterations to the agreed hourly rate.

Thus, the FLSA mandates that hours not be rounded in the fashion that the OP’s employer has been doing, as I asserted above. I expressed no opinion on the rate of pay due for those hours. The FLSA, as construed by Klinghoffer, would require only the minimum wage. The common law of contract, a separate theory from an FLSA claim, prevents the employer from unilaterally and retroactively changing the employee’s hourly wage.

[Dusty_Rose]

@Daylate

Round to the nearest 15 minutes? Good God, if I did that our techs would lynch me. Auto repair shop - we round to the nearest minute. IMHO, it’s easier to do this than a 15 minute rounding. And there’s never any bitching.

This made me laugh out loud. Yeah, I suppose it might not work so well at other places. We’re not real strict about time in/time out. More of a “show up around 8” type of thing. As long as people get their work done, we’re not real fussy. Most of my rounding is only a matter of 2 or 3 minutes; and, like I said, I almost always go in the employee’s favor.

As an aside, I thought auto repair went by book time- more of a pay per job situation?

[Serenata67]

At the bank I work at, I have to be up and running by the time I’m scheduled. Which means getting there at least 5 minutes early every day, which adds up to a half hour by the time Saturday rolls around that I didn’t get paid for…

[DanBlather]

@Serenata67

At the bank I work at, I have to be up and running by the time I’m scheduled. Which means getting there at least 5 minutes early every day, which adds up to a half hour by the time Saturday rolls around that I didn’t get paid for…

Do you not clock in before starting to set up? Or is there no time clock? If I recall, there was some case law about the requirement to pay employees for the time needed to get ready for work. Maybe it was whether it was necessary to pay employees for the time to change into and out of protective clothing.

[Daylate]

As an aside, I thought auto repair went by book time- more of a pay per job situation?

We use both book time and actual hours worked to calculate payroll. The employees actual time on the job is compared to the book time, and used to calculate “productivity”. His “productivity” for the total pay period is then used to determine his hourly wage based on a sliding scale. This wage is then applied to the actual hours worked during the period to determine the actual pay. Thank God for Excel!

Long periods of 80% to 85% productivity can result in dismissal.

[Dusty_Rose]

@Daylate

We use both book time and actual hours worked to calculate payroll. The employees actual time on the job is compared to the book time, and used to calculate “productivity”. His “productivity” for the total pay period is then used to determine his hourly wage based on a sliding scale. This wage is then applied to the actual hours worked during the period to determine the actual pay. Thank God for Excel!

Long periods of 80% to 85% productivity can result in dismissal.

I learned something new! Thanks, Daylate

And remind me I never want to do payroll for an auto repair shop…

[Daylate]

Not all auto shops do it the same way - some, often at dealerships, use book time exclusively.

I just don’t understand what is to be gained by rounding off to quarter hours. Looks like actually more work for the bookkeeper, and a good way (obviously) of building up employee resentment. Maybe in the bad old days before computers and electronic calculators, but now? Silly.

[Snnipe_70E]

@KneadToKnow

Not that I disagree, but for the sake of thoroughness, can you cite the Texas law being violated?

No I can not state Texas law. I do not know for sure but I do believe it is in FLSA, I may be wrong about that but I believe that was what personel quoated to the department head when I got my pay corrected. According to the head of personal if the employeer pays by the 0.1 of a hour (6 minutes) then they are required to round down if under 3 minutes and round up if over 4 minutes. If they paid by the 1/4 hour then it was 7 or 8 minutes. And the Labor Board requires they employeer to pay by by the time clocked from start to finish, the rounding of time only applies to total time clocked.

[Snnipe_70E]

As a side bar example of time clocked.

I worked for a hospital a number of years ago. The maintenance engineers had a habit of clocking in when the got to the hospital. They would go in to the cafeteria and get a cup of coffee and sit around talking until 7:55 then go out the shop and start work at 8:00 AM. they did not clock out for lunch. And some times after work they would hang around talking until 5:00 or 5:30. This went on for years.

One of the employees that got fired complained that his pay off was not right and filed a complaint with the labor board. The hospital had to pull all his time cards for the last 5 years, and then pay him according to the hours clocked. All hours. then the labor board in finding one set of errors made the hospital pull all the cards and pay everyone there according to the time clocked.

The hospital pulled all the time clocks and we had to fill in out cards by hand.

I ended up in another battle with personal over filling out the cards by hand, but I do not want to put that here. The time frame for all this was 1973.

[Serenata67]

@DanBlather

Do you not clock in before starting to set up? Or is there no time clock? If I recall, there was some case law about the requirement to pay employees for the time needed to get ready for work. Maybe it was whether it was necessary to pay employees for the time to change into and out of protective clothing.

We have an online time card we fill out, but we have to round to the nearest 15 minutes. So if we’re there 5 minutes early, we round to the time we were scheduled for. It sucks. I mean, over the course of a month, that’s two hours I’m not getting paid for. By the end of the year, it’s three full days of work I don’t get money for. But my supervisor is a workaholic kiss ass and won’t see reason.

[UltraVires]

@Kimmy_Gibbler

The state and the feds are charged with enforcing these laws and regulations, and they take this obligation seriously. All complaints will be investigated and wage payment orders will issue if appropriate.

I am unimpressed by the ignorance defense. I have trouble believing that this company really has no misgivings about the lawfulness of potentially docking 28 minutes of pay per day; rather I suspect they think this is a neat disciplinary measure they’ve devised. They should be crisply and matter-of-factly disabused of their error and made aware that anything other than immediate compliance with the law will result in complaints being lodged with the appropriate enforcement divisions of the state and federal Departments of Labor.

Not that I disagree with you, but an employer can’t “adjust” someone’s rate of pay? As long as they are paying minimum wage, then they aren’t violating any laws, no?

Let’s say I make $10/hr. and show up one minute late so the boss docks me a full hour. For the day, I am still making 70/8 or $8.75/hr. Can’t the boss just say he cut my pay rate for that day only because I was late?

[Kimmy_Gibbler]

@jtgain

Not that I disagree with you, but an employer can’t “adjust” someone’s rate of pay? As long as they are paying minimum wage, then they aren’t violating any laws, no?

Let’s say I make $10/hr. and show up one minute late so the boss docks me a full hour. For the day, I am still making 70/8 or $8.75/hr. Can’t the boss just say he cut my pay rate for that day only because I was late?

If, say, I get less than four-star customer service at my local Wal*Mart, can I unilaterally decide that I am thereby entitled to a five-finger discount for my trouble?

A boss cannot “adjust” an agreed-to hourly wage, unless the conditions for this adjustment have also been agreed to. When I say “jtgain, be my paralegal. I’ll pay you $16/hr. You show up at 8:00 AM and work to 5:00 PM, with an hour lunch at noon” and you say, “Sounds swell, I accept,” I cannot, even if you show up at 8:10, decide to pay you minimum wage that day. Our agreement, and the typical practices of modern American employers, does not provide for this. Accordingly, it will not be a component of the employment contract (do not make the n00b mistake of thinking that all contracts are in writing or the sophisticated mistake of thinking that at-will employment means that there is no employer-employee contract [it just means the term of employment is not contractually fixed]).

And so, these “adjustments” are more accurately called “breach of contract.” This is not an FLSA claim (as U.S. v. Klinghoffer Bros. Realty, supra post 19, teaches), but it is a viable legal claim nonetheless.

[ivn1188]

The contractual claim is dependent upon a couple of things. Since it’s a quasi-contract you have to show that there was actually an agreement.

If Joe Bob shows up to work and doesn’t like the way the hours are punched, and then keeps working without making a fuss or having some other evidence that he was not getting the agreed pay, it’s read that he impliedly agreed to the pay difference. I imagine most people, being paid 8.25/hr as opposed to 30/hr, would immediately complain. The OP’s continuing employment at this company is most likely implied consent to the minor adjustment in wages.

See Zoltek v. Safelite Glass Corp., 884 F.Supp. 283, 286 (N.D.Ill.1995).

Also, as far as the accurate timekeeping claim, courts have not found a private cause of action for regulatory violations. The DOL can pursue them, but not the OP.

(East v. Bullock’s, Inc., 34 F.Supp.2d 1176 D.Ariz.,1998) Additionally, the only federal cases after Cort to address the question of whether a private right of action exists under § 215(a)(5) have found that no such right exists. Id.; Castillo v. Givens, 704 F.2d 181, 198 (5th Cir.), cert. denied, 464 U.S. 850, 104 S.Ct. 160, 78 L.Ed.2d 147 (1983); O’Quinn v. Chambers County, Texas, 636 F.Supp. 1388, 1392 (S.D.Tex.1986), amended on other grounds, 650 F.Supp. 25 (S.D.Tex.1986); Marchak v. Observer Publications, Inc., 493 F.Supp. 278, 281 (D.R.I.1980) (private right of action under section 16(b) of FLSA does not encompass failure to keep records). Thus, there is no evidence that Congress intended to create a private right of action to enforce § 215(a)(5). Indeed, given the existence of other private rights of action under FLSA, it appears that Congress did not intent to provide a private right to enforce § 215(a)(5) Bureerong, 922 F.Supp. at 1473.

[snailboy]

I decided to print the page from TWC off and slip it in the general manager’s office when no one is looking. I’ll keep track of what my hours are supposed to be and if my paycheck is short Friday, I’ll take it to the next step.