Ah, Labor Day. Family barbecues, a trip to the beach, your last chance to wear white, time spent napping and binging on Netflix, or just a simple day of relaxation. However you spent the long weekend, I hope you enjoyed some rest from your labors. As an employment lawyer and a mother, the word “labor” has two rather negative connotations for me—as in “labor pains” and, even worse, the “Fair Labor Standards Act.” I will spare you the details of the former and focus instead on the latter in today’s post.
One of the biggest ways that employers get tripped up in their efforts to comply with the FLSA is failing to track their nonexempt employees’ time accurately. Unless you are prepared to insert a microchip in your employees’ bodies (yes, a company actually did this) or hire a film crew to track and record their every move, you’re going to need adequate time sheet policies in place.
Unfortunately, the good ole days when employers could simply ask employees to fill out standard time sheets are over, and simply waving the employee’s time sheet before the court is no longer a sufficient defense strategy for proving the number of hours actually worked. Instead, it has become routine for employees to claim they worked before or after the time recorded on their time sheets, or worked during their meal periods, even though their time sheets don’t reflect this time. These so-called “off-the-clock” claims are the bane of employers and the darling of the plaintiff’s bar due to the ease of proving violations and the availability of attorneys’ fees to the prevailing employee.
Importantly, the FLSA places the burden of maintaining proper and accurate time records on the employer, not the employee. Consequently, it’s critical that employers implement the use of detailed time sheets and time sheet acknowledgements to defend against the rising tide of off-the-clock claims. Here are three tips to help your business defend against off-the-clock claims:
Tip #1: Use detailed time sheets
For each day worked, time sheets should reflect detailed information regarding the employee’s breaks and meal periods as well as “clock-in” and “clock-out” times, which may vary by minutes each day. Time sheets that show an employee worked eight hours every single workday, from 8:00 a.m. to 5:00 p.m., with one hour taken for lunch, are not credible.
Tip #2: Make employees complete their own time sheets
Employees should be required to complete their own time sheets. Do not allow supervisors and managers to complete time sheets or revise the information on them for their direct reports!
Tip #3: Make employees sign time sheet acknowledgements
Employees should be required to sign an acknowledgement on every time sheet affirming they: (1) fully and accurately reported all hours worked on their time sheets, (2) recorded all time worked–including before or after regularly scheduled hours and/or during meal breaks, (3) did not perform any work off-the-clock, (4) were “completely relieved of work” during all meal periods, and (5) understand they may be subject to disciplinary action for overstating or understating the number of hours worked.
Admittedly, it can be an uphill battle proving that employees didn’t work when they say they did, but implementing the use of detailed timesheets and comprehensive acknowledgments will go a long way toward deterring your nonexempt employees from filing off-the-clock claims against your business.
One final tip: You really don’t have to stop wearing white after Labor Day. Hope you had a nice holiday. See you at work.