Time and Attendance Law
Time and Attendance:
California law requires you to keep accurate time records for your employees. It is also key to defending potentially costly lawsuits. In California, employers must keep employee wages and hours records for three years, along with other information.
Your records should demonstrate that you pay your employees for all time worked. That means that your timekeeping policies and system must accurately track all time worked. According to the California Department of Labor Standards Enforcement’s (DLSE’s) website, “Hours Worked” means the time during which an employee is subject to the control of any employer. And it includes all of the time the employee is suffered or permitted to work, whether or not required to do so.” (IWC Wage Order 1-2000, § 2.(H).) The time counts as “hours worked”, anytime the employee is subject to the employer’s control.
It’s always best to have written policies (rather than unwritten ones) for timekeeping. For hourly-paid non-exempt employees, you should clearly state that employees are paid for all time worked in your written policies. Your policy should instruct employees not to work off-the-clock. And, they must always clock in before beginning any work and clock out only after they have completed all their work for the shift.
Depending on the size of your company, you may wish to include a contact number for human resources or a compliance officer. All employees should have a number to call if an immediate supervisor is demanding they work off-the-clock.
You should include in your written time and attendance policies that employees are forbidden to work more hours than scheduled. However, you may not withhold pay for any unauthorized time, regular or overtime. Although, it is acceptable, and advisable, to explain that unauthorized hours will result in discipline. Also, if your employees have to change into work uniforms once they arrive at your workplace, they may need to be “on-the-clock” for this time. Or if they travel from one location to another upon arriving, or undergo security searches before leaving the workplace, they may need to be “on-the-clock” for this time as well. We can assist you in determining whether employees must be paid for these preliminary or after-work activities. And we can guide you in how to craft a compliant timekeeping policy.
Time Spent Changing Into Uniforms or Equipment (“Donning and Doffing”)
If you require your employees to put on equipment or gear after they arrive at work (and take it off before they leave) you could owe wages for that time. This is commonly called “donning and doffing.” This is a complicated area of law in which federal law and California law may differ.
Whether wages are due may depend on factors such as whether the gear is mere “clothing.” This factor is especially relevant under a recent Supreme Court decision regarding federal law, Sandifer v. U.S. Steel Corp., 134 S. Ct. 870 (2014). The Court found that flame retardant jackets, boots, “snoods,” wristlets, etc., were mere “clothing” and time spent changing into and out of these did not warrant compensation under the federal Fair Labor Standards Act.
California law is more employee-friendly than the FLSA, however, if your employees must change into uniforms or protective gear after arriving at work, you may still owe wages for the time. Important factors include: whether the gear is required (“integral”) to their specific job duties, whether the employees are required to leave the uniforms at the workplace, and whether the time spent changing is “de minimis.”
Travel to Work Sites
Employers do not have to pay for time commuting to work for their non-exempt, hourly paid employees’. However, there are situations where employers must track and pay for travel time. If, for example, your employees meet up at one location and then ride a company vehicle to the actual work site, employees must be paid for the time in the vehicle.
The leading case on compensation for travel time is Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2000). In that case, agricultural workers were required to report to work in one location. They were then required to take an employer-provided bus to the fields to work. Because the employees were “subject to the employer’s control” during their time on the bus, the employer was required to track and pay wages for that time.
If you require your employees to meet at one location and travel to another, or if you provide your employees with transportation, and you have questions, please contact us. We can advise you based on your specific business practices.
Security Searches of Employees
Employees who must have their bags checked for company property before leaving the premises may be owed wages for the time spent waiting for and undergoing the check. If employees are required to clock out for shifts or breaks before having their bags checked, you may be exposed to liability. Employees have sometimes been found to be “subject” to the employer’s “control,” but this depends upon the specific circumstances. The length and extent of the bag check, the distance from the time-clock to the location of the check, the length of time waiting for a manager to check bags are all potentially relevant.
We can help ensure you are complying with the law and can assist you to craft a compliant written policy to explain how security checks at your company work.
Most large employers now use some form of electronic timekeeping. Electronic timekeeping can be of great benefit in record keeping. However, it is important to ensure that the system has safeguards to prevent employees from “clocking in” for each other when they are not actually working. It is also important to review electronic timekeeping records periodically, to make sure, for example, that employees in one store of a multi-store chain are not all clocking in at precisely the same time, down to the minute, every day. That can be a sign of employees either working off the clock or “padding’ their time.
Also, your software should not “round” time to the nearest hour, half-hour or even quarter-hour. This area of law is also complicated. In general, however, if a rounding policy results in no net benefit to either employer or employee, it may be upheld in the event of a lawsuit. If the rounding policy results in a benefit to the employer, however, the employer may be required to pay damages and steep penalties. As a result, it is not generally advisable to round time at all, whether your timekeeping system is manual or electronic.
Our expert employment attorneys can assist you by reviewing your time and attendance policies and practices with you to ensure your business is protected.
Regardless of whether you are just starting a brand new company, run a ‘mom & pop’ business, or you already have a large established corporate enterprise with hundreds of locations across California, we are able to grow with you and meet your legal needs.