I am an exempt employee working for a large company in California. My employer requires that all employees wear ID badges, which we must use to "scan" in and out of the building. Though these turnstile badge-scan stations were "sold" to us post 9/11 (in 2002) as added security for our building and employees, they are now being *secretly* used to record all employees in/out times from the building and compiled in reports that purport to show our "total hours worked" in the office. In effect, these turnstiles have become "timeclocks".

I question the legality of using our badge-scan stations as timeclocks:

1) From the start (in 2002 to present) the employees were officially told the badge-scan stations were only for added *security* for our building (i.e., keep the unauthorized "bad guys" out).

2) The new use of these stations as timeclocks has never been officially announced to employees. It is intentionally being kept secret by management.

3) There is no reason to use the scan stations as timeclocks, because our non-exempt employees already use a dedicated, computerized system to punch in and out officially.

3) Employees "through the grapevine" are only now (November 2005) becoming aware that our badge scans have been compiled in reports, dating back to the beginning of the year. Managers of each department, one by one, are just now starting to reveal the results of these reports to their employees.

4) The reports are being used to track the time of all employees, including EXEMPT staff.

5) Exempt employees are only now being told that they are *required* to put in a minimum of 8 hours a day in the office, irregardless of additional time worked at home or on the road, or performance on the job.

6) The company's employee handbook does NOT state any minimum hours required for an exempt employee.

Is it legal for my employer to (1) secretly use scan stations as timeclocks for its employees, and particularly exempt staff?; (2) require exempt employees to work an 8 hour minimum "in the office"?; (3) impose minimum hours for exempt staff when it is not specified in our employee handbook? (4) show no differentiation between exempt and nonexempt staff exempt that no overtime is paid to exempt staff?

It appears to me that my company is blurring the lines of exempt and nonexempt in its favor, and at the expense of employee rights.

Is it legal for my employer to (1) secretly use scan stations as timeclocks for its employees, and particularly exempt staff?; (2) require exempt employees to work an 8 hour minimum "in the office"?; (3) impose minimum hours for exempt staff when it is not specified in our employee handbook? (4) show no differentiation between exempt and nonexempt staff exempt that no overtime is paid to exempt staff?

I answered your general question that your tacked on to someone else's post earlier today. However, in respect to these specific questions:

1. "secretly"? Oh please, you are scanning in. What's secret about that? The purpose for which such information is used is up to the employer.

2. Yes.

3. Yes.

4. No, unless you are docked pay in violation of the FLSA regulations.

You're taking this way too personally and there just aren't any laws to back you up. But if you think it's going to be different at another employer, you can go find another job.

It seems to me that it's an employer's duty, under the law, to be upfront with the actual use of such things as badge scanning. Sure, we're not stupid. We realize it could be used for that purpose. It was NEVER said, never once, that scans would be used for timekeeping purposes. It was always stated that they were solely there for our security. Secretive timekeeping does not sound very legal to me.

Exempt employees in our company do not fill out any official timesheets, except to report vacation time, sick time, etc.

I think my employer is walking a fine line, into a "gray area" that could land them a class-action lawsuit. We do not work in an industry where clients are billed or anything involving contracts. It is not that type of industry.

Treating exempt employees llike hourly/nonexempt employees by requiring them to work specific number of hours or arrive at specific times may jeopardize the exempt status, and I'm sure the employer doesn't want to have to start paying us all overtime, because, believe me, all the hours spent working outside the office will mount up into a lot of extra compensation.

Your attitude that I should just "go find another" job is unnecessarily dismissive.

No, it doesn't. If you are being paid as an exempt employee and you are not being docked in violation of the FLSA, mereley tracking of the time is not going to "cross the line". Plenty of courts have already decided that.

This is actually a common area of confusion. First, there is nothing that prevents an employer from gathering in and out times using a scanning device, even if they said it was for security and another method is also used to keep track of time. This is true, even if the employee is exempt.

Now, the problem would come up if the employer actually uses it to determine hours worked. If so, the employer is required to show these records to the employee on demand. However, as exempt employees are not paid on hours worked, there is no requirement to keep these records for exempt employees. Thus, a non-exempt employee could ask to see the records, but an exempt would likely not. This would only apply to people who demanded to see them.

In terms of a class action, the biggest problem would be damages. It is not clear from the facts exactly who would have suffered damages and how much.

My guess would be that if the company has a large number of "exempt" employees, they are really not exempt. Interestingly, I got in an argument with someone at a Thankgiving dinner over whether he was exempt or not. He was paid a salary, and insisted he was exempt. It was clear from his job duties that there was no way that he was. However, he was adamant that he was. For some reason there is just some status associated with being exempt. Just another problem with dealing with "extended family" over the holidays.


Michael Tracy
Attorney
http://www.gotovertime.com

Disclaimer: The above response is a general statement of California law. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.

Thank you for your comprehensive response.

Since my employer has been keeping records of in/out times of ALL its employees since January '05, even though it's not a req'ment for exempt employees, does that mean they can do something with that information? Could exempt employees actually be docked for time less than 8 hours a day, despite that they routinely worked from home? (To dock pay would seem to be treating them like non-exempt.)

If direct docking of pay, hour per hour, isn't a legal option, then could it be done in a lump sum, such as not giving the employee the usual cost-of-living raise or share in the company "bonus"? Our company holds back a percentage of everyone's check, which is paid back in a lump sum once a year...the rate of which depends if the employee's dept and the company itself met a series of predetermined goals during the year; a portion of that payback is also an individual goal. If the individual goal was deemed not met, then there's be a lesser payout, or no payout at all, despite company goals being met. That would be a personal financial loss, if this new report could be used to limit an individual's annual payout.

And yes, our company has a very large number of exempt employees. And those that had been classified as nonexempt often make no logical sense (i.e., job duties are very similar to exempt status employees), so it's like they *had* to label some employees nonexempt so it would look good on paper.

I'm curious why an employer doesn't, apparently, legally have to "fess up" to what they're using the scanning devices for. As I said, and I mean this sincerely, it was specifically put under the cloak of "security for us, the employees." To spin it around now as a timekeeping machine, well, it just seems intentially deceptive, and one would think that to intentially deceive employees would be illegal....or at least walking the fine line of the law.

Your additional feedback would be appreciated. Thank you.

It appears to have been made clear by both Mtracy and myself that this is only illegal IF your salary is improperly docked. Here is the FLSA regulation regarding when an exempt employee's salary may be docked:
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_541/29CFR541.118.htm

However, withholding of an increase or bonus is not illegal docking; if the employer requires certain hours be worked and the employee does not work them consistently to the employer's satisfaction, it would be logical that the employee's increase or bonus would be negatively affected.

It is not a violation of law for employees who would otherwise qualify as exempt to be treated as nonexempt; it is only a violation if nonexempt employees who do not qualify as exempt are treated as such.

Ah, but no minimum hours were ever stated in writing for exempt employees. The handbook only has specifics for nonexempts.

I will only deal with the issue of why the company does not have to "fess up." This is not really a labor law question, but I will see what I can do with it.

In general, there is no law against lying -- either civil or criminal. If there were, I would just go down to the local bar and make a fortune. A company can lie regulary and not have it be illegal. The lie must amount to some breach of the law. For instance, if you call Microsoft Corporation right now, and ask to speak to Bill Gates, his secretary might say "Bill is not available right now." This would likely be a lie. He is probably at home eating a turkey and could easily take your call. If his wife called, she would likely be put through. Thus, the company lies to some, but not other people. Again, not a violation of any law.

A salesperson can say this is the "best dishwahers on the market" even though he knows that a competitor makes a "better" one. This would be a lie, but not a violation of the law. This is because courts simply don't want to get into the business of determining what "best" and "better" mean. If he said, this dishwasher can hold 200 plates when he knows that it can only hold 100 plates, this would be a violation of the law -- likely false advertising. If you actually bought the dishwasher on such a statement it would be an additional violation of the law -- fraud.

Saying a device is for security, but using it to keep time does not fit into any additional legal scheme. That is, it is not advertising, so the additional protections there do not apply. It is not a financial disclosure by the company, so those protections do not apply. I really just see it as a communication between an employer and employees. There is no requirement that these be truthful. In many settings, it makes perfect sense that they not be. Let us say that you are making a new product that you don't want your competitors to know about. You may even decieve your own employees about it so as to avoid leaks to the other company. Nothing illegal about this.

The only way it could be illegal is if the company put it into your employment contract. There are ways to do this other than a written contract, but I will assume for purposes of argument that your company has the following contract: "Employee agrees to work for BigCo and BigCo agrees to use the swipe cards only for security purposes and will never use them to track employees time." Ok, so let's just assume this is a valid contract, signed by both sides. Now, BigCo has started using the swipe cards to track time. This is illegal (breach of contract). However, you still have a problem. You will likely only be able to recover nominal damages. That is $1. There simply aren't any damages in this case.

Finally, I have used just such swipe card records in cases for unpaid overtime. In that case, it was the employee who was requesting that the company produce them so that he could show that he worked on weekends. Thus, even if the company only collected them for "security" purposes, employees would subpeona them for time tracking anyway.

I hope this helps to clear up the issues in this case.

Michael Tracy
Attorney
http://www.gotovertime.com

Disclaimer: The above response is a general statement of California law. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.

After reading your website, I think many of us at our company are not classified correctly. If the test is that we must exercise independent judgment over matters “directly related to management policies or general business operations," well, then I doubt that most employees beneath a manager-level position would qualify in any company. After all, most of us are directed what to do, at least on a high level, even if we use our own creativity and knowledge to accomplish our assignments in the best way we know how to.

If that's the case, then would all the hours I've worked from home, or countless hours spent in air travel and on the road possibly be owed to me in overtime? Or would those "out of the office" worked hours be hard to prove? (if so, how could you "prove" them? Seems to me the number and quality outcome of projects worked on speak for themselves.) I think your site said something about the damages being limited to 30 days?

I think most employees assume they've been classified correctly under the law, and, as you said on your site, the reason employers don't sweat it is because if you're just dealing with back pay for a few employees and paying them is still much cheaper than paying all of them.

Independent judgment is but one of the criteria. Have you checked out the requirements for each type of exemption?
http://www.dol.gov/esa/regs/compliance/whd/fairpay/fs17a_overview.htm

After doing that, if you feel you have been misclassified, you can file a claim for unpaid overtime with the Division of Labor Standards enforcement. If you have good records, that's better, but it is really the employer's burden of proof to show that you did not work what you claimed. Of course, if you were paid your guaranteed salary as exempt, when you would not have been paid for nonworked hours as nonexempt, those payments would be subject to recovery.

First, the question about out of office time. In California, all travel time for overnight travel is considered work time. There is a possible exception in that your employer could "start the clock" after you have driven the amount of time it normally takes you to commute to the office. That is, if it normally takes you 30 minutes to drive to work, and you go straight to the airport for travel, the first 30 minutes that it takes you to get to the airport would not be travel time. However, all time waiting at the airport, sitting on the airplane, riding in a train, taxis, etc is work time up untill you are in your hotel. As soon as you leave your hotel for work, the clock starts again.

Any time worked from home is work time. Proving these is simple. You get on the stand and say "I worked about 10 hours a week from home." There, it is proven. It seems that we have come full circle in this discussion -- from the employer gathering too much information about work time, to not gathering enough information. In any case, unless your hours work claim is rediculous, the employer does not spend significant time fighting it. The employers argument focuses on you being exempt. If you are exempt, if doesn't matter how many hours you worked.

The damages can go back up to 4 years (this is under an unfair competition law. The Labor Commission can only go back 3 years). The 30 day period only applies to waiting time penalties after termination. If you still work for the company, then these waiting time penalties would not apply.

Yep, Michael, I think we've beat this one to its timely death. :D

Thank you, Michael, for the detailed replies you've given. You've really helped make sense of all of this stuff. As for Pattymd, you have to understand that many of the people who are asking questions here are simply looking for answers and they do not appreciate your oftentimes cutting, rather dismissive remarks. I've noted you've done quite a lot of this on other people's posts too. You have 1,900-plus posts? Do you do anything but monitor this site? I hope you get a life! :p

I provide legal answers in those areas in which I am knowledgeable. The fact that some people refuse to accept them, even when verified by others, is not my problem. And you don't know how long I've been volunteering my time here. And I have a very high-stress and time-consuming job; my "life" is not the issue here.

And I'm done with this thread.

So is everyone else. This horse has been beaten to death long enough.

SoCal, if you have a complaint about the answers you've received, you are free to send me a PM. However, I do not see anything untoward in Patty's answers, other than the fact that she did not give you the answers you wanted to hear.