Ask the Expert, FLSA/Wages

Ask the Expert: Can We Adjust Time Cards for Waiting Time?

Question: My employer uses a “4 -minute rule,” meaning that our employees have an 8-minute window (4 before and 4 after their scheduled time to clock in) without changes being made to their time cards. We do this because there’s a line waiting to clock in.

However, for those who are more than the 4 minutes before or after, we manually change the employee’s time card to reflect that they started right on time and have each employee sign off. My question is can we do this and can this be considered waiting time that is compensable time?

Answer: Thank you for your inquiry. As long as the nonexempt employees’ time records accurately reflect how many hours they work, the employer likely may make minor adjustments to their time cards. Further, the time spent by nonexempt employees waiting to clock in likely is not considered paid time.

The Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees for all time spent working. That includes all the time you require an employee to be on duty or to report anywhere for work from the beginning of her first daily “principal activity” to the end of her last daily principal activity. The employee’s principal activities (the things that you hired her to do) include tasks that are an “integral and indispensable” part of those activities. Moreover, you must pay your employees for any extra time they are “suffered or permitted” (i.e., allowed) to work, even if you didn’t authorize it.

Time clocks are not required by law but are often used by employers to record working time accurately. According to the FLSA regulations, “in those cases where time clocks are used, employees who voluntarily come in before the regular starting time or remain after their closing time do not have to be paid for such periods provided that they do not engage in any work. Their early or late clock punching may be disregarded. Minor differences between the clock records and actual hours worked cannot ordinarily be avoided, but major discrepancies should be discouraged since they raise a doubt as to the accuracy of the records of the hours actually worked.” See 29 C.F.R. sec. 785.48(a).

Employers also may engage in rounding practices. According to the FLSA regulations, “it has been found that in some industries, there has been the practice for many years of recording the employees’ starting and stopping time to the nearest five minutes, or to the nearest one-tenth or one-fourth of an hour. Presumably, the most common arrangement averages out so that the employees are fully compensated for all the time they actually work. This practice of computing working time will be accepted, provided that it is used in a manner that will not fail to compensate employees properly for all the time they have actually worked.” See 29 C.F.R. sec. 785.48(b).

So, as long as the time clock records accurately reflect the nonexempt employees’ working time and employees are paid for properly for the time, the employer’s time clock practices should be acceptable. The changing of the employee’s clocking in time by 2 to 10 minutes is a form of rounding and likely is acceptable if employees benefit from the rounding (i.e., get a few extra minutes of work added in) as often as their time is rounded down (i.e., lose a few minutes of work). Further, employees waiting to clock in likely are not considered to be engaged in compensable waiting time since they are not performing any job duties or doing any activity considered “integral and indispensable’ to their work activities.

You should consult with an attorney who is familiar with the FLSA to ensure the employer’s specific time-keeping methods meet the FLSA standards.