Wage and Hour: Can We Dock the Pay of Tardy Employees?

We are having a lot of trouble with employees—both exempt and nonexempt-who come to work late. Our attempts to deal with this haven’t been too successful. In some jobs like the assembly line, punctuality is critical-we can’t run the line without all the people there. In other cases, it doesn’t matter so much as far as getting the work done, but it is causing blowback—we get the “If I have to be on time, why doesn’t she have to be on time?” stuff. Plus, our supervisors and managers aren’t consistent in how they deal with offenders. How do we curb our tardiness problems? And can we dock the pay of offenders? — Rob J. in Antioch

The HR Management & Compliance Report: How To Comply with California Wage & Hour Law, explains everything you need to know to stay in compliance with the state’s complex and ever-changing rules, laws, and regulations in this area. Coverage on bonuses, meal and rest breaks, overtime, alternative workweeks, final paychecks, and more.

Allison West of Employment Practices Specialists fields this question about tardiness-a challenge for many employers.

Your question about handling tardiness is not uncommon. Many employers face this problem. You have three big issues: employee tardiness that’s out of control, essentially no consequences for the tardiness, and inconsistent treatment by managers. Before instituting a hard-core attendance policy, consider the following recommendations.

Emphasize That Coming to Work on Time Is Mandatory

All employees, regardless of whether they are exempt or nonexempt, must understand that reporting to work on time is mandatory and part of their job requirements. Sometimes employees need reminding why their respect for the workday starting time is critical and how they fit into the big corporate picture. Alas, you must paint the reasons for them. As you noted, production on the assembly line cannot be done without everyone at his or her station. You might explain, ‘In order to meet production goals, everyone must be in place at the beginning of the workday. Or, ‘We cannot meet customer expectations if we cannot meet production deadlines. Everyone being at work on time helps the company meet these demands.’ 

For those employees with the ‘why me and not her’ attitude, you might explain that different positions have different expectations. You will need to say, ‘The bottom line is that the company wants you to show up at 8 a.m. and that is part of your job duties.’ While it is a delicate discussion, nonexempt employees sometimes need to know that exempt employees do not have the same attendance requirements as nonexempt employees.

One important question for you to decide: are chronic latecomers worth keeping around?

Create Consequences

The main message your employees are getting is there are no real consequences for tardiness, and that some people get favored treatment. All employees must be held accountable for their actions and need to understand that there are serious consequences for violating company policies. You certainly may need a tougher attendance policy to get this across, but you will need to think carefully about how rigid you want to be and how to word your policy, as there are always exceptions to starting and ending workdays.

With this said, in specific instances, managers or human resources must question why an employee is late. Some reasons could be legitimate and may require you to consider changing the employee’s hours—the lateness may, for example, have to do with a medical reason or even a harassment issue. So look closely at individuals who are late. Are there other problems with their performance? Is tardiness a chronic problem or a sporadic one?

Also, answer a few general questions: is your policy unfairly penalizing those employees who have an occasional issue and are just a few minutes late? What is your threshold for tardiness? Five minutes? Ten minutes? Simply creating a new policy may not be the whole answer. Think through the consequences of each segment of your new policy.

Standardize Managerial Response  

The third problem you mention is your managers’ inconsistent handling of tardiness. All of your managers need training on how to motivate employees, how to coach and counsel, and most of all, how to effectively and consistently discipline employees. I am a firm believer that managers must understand that their own performance is measured by how well their employees perform and follow company policies. Do not reward managers who are inconsistent in their discipline and fail to help achieve the company’s goals.

Docking Pay

As to your question about docking pay, as with any disciplinary action, consider the positives and negatives. Will docking pay get the desired results? Surprisingly, the answer is not always yes. Typically, docking pay may have a short-term desired effect. However, if employees have a poor work ethic, docking their pay will likely not change their behavior for the long term.

Under California law, you may deduct money from a nonexempt employee’s paycheck for coming to work late. (Exempt employees’ pay should not be docked in this manner.) You may not deduct more than the proportionate wage that would have been earned during the time actually lost; however, for a loss of time less than 30 minutes, one half hour’s wage may be deducted. For example, if the employee earns $12 per hour and is 50 minutes late, you may deduct $10. If the employee comes in 8 minutes late, you may deduct $6.

Allison West is principal of Employment Practices Specialists, an employment law training and consulting firm in Pacifica.