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Clocked out and ready to leave

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  • Clocked out and ready to leave

    I work retail for a fairly large company. We must all leave the store together at the end of the day. We close at 8 pm and must stay until everyone has their department in order and all the cleaning chores are done. Most of the time I am finished with my department by 8 and then go to other departments to help them finish.

    On more than one occasion we have been told to clock out and I am required to stand at the front and wait for others to finish. I have waited up to 15 minutes or more than one occasion. If I am not clocked in, I want to leave and go home, not stand around.

    I have been told several reasons:

    #1 Safety

    #2 Managers who stayed and had another employee stay after everyone was gone (sexual)

    I just want to leave after I have clocked out and not be required to wait for 15 minutes on my time. If I am required to be there I should be paid!!

    Any suggestions or advice?

    Thanks

    Clocked Out

  • #2
    Unpaid wages

    Absolutely you should be paid. The question is whether its worth it to do something about it right now.

    If this could be solved by simply not clocking out until the last person is finished, that would be the obvious choice. So obvious that I assume that you are being prevented from doing this.

    Next option: I would have a very low key non-confrontational conversation with your boss indicating that you think that since you are not permitted to leave that you should be paid. Be absolutely clear what your position is. If you communicate with your boss by email, I'd send a very low key non-confrontational email saying same. Keep a copy. The chances are that none of this is going to change how they pay you, but that's really not the point. You want to be on record as having raised the issue and pointed out to the boss that you should be paid until the point that you are free to go. Be friendly, approachable but firm. And above all do not get upset when they tell you "no." Finally, don't raise this as part of a long conversation with your boss about everything that is wrong with this job. In fact, never have such a converation with your boss, but I digress.

    Second, keep records. If you keep a planner, check your watch every day when you leave and mark it down in your planner. Do not store these records at your place of employment. You can even go back and estimate your loss to date, though be very clear on your calendar which records were kept contemporaneously and which were re-created/estimated after the fact.

    When you have a fair bit of unpaid time/overtime take your records to an employment attorney (including the document where you politely requested that you be paid for all hours you are required to spend at work). Shop around for an attorney--treat it like a serious purchase and don't pay anyone any money until you have checked with at least three attorneys that have brought FLSA suits before. You may be able to find someone who will do it on a straight contingency--rare in the employment law world.

    Preferable to do this when you wouldn't be undone by job loss. Of course terminating you for seeking lost pay is unlawful, but all that means is that if they fire you you can also seek damages for wrongful termination. While this would make you a more attractive client (bigger damages) to a prospective attorney, you're far better off with a job than a law suit. The time to press the point may be when you're looking to switch jobs anyway.

    You may want to quietly keep records for others as well, or suggest that they keep their own time records. Why do this for them? It's not really about them. Having multiple similar claims will make you more attractive to an attorney.

    In the end, and as with all suits. Be willing to compromise. A bird in the hand is worth two in the bush.

    Comment


    • #3
      I agree with agatha. I would only add that depending upon the state where you work, you may have other state law claims for unpaid wages, too. For example, in MA you can get up to 3x your unpaid wages, plus attorneys fees when you ultimately decide to collect on the back-wages.

      As for keeping records, I would also add that you should note down who was there while you stayed after you clocked out, and note down if anyone else works after they clocked out, too. You should also note the exact date, time, place and any witnesses to your manager's request.

      One reason for noting who else worked the extra time without pay is that you might be able to add them to your claim, in a class-action style manner. This will also make finding an attorney easier.

      As for the e-mail, or other form of written communication, you should also know that retaliation laws (expecially in MA) prohibit them from firing you in retaliation for your wage complaint, and have their legal consequences and remedies.

      Last thing, FLSA and MA state law claims have statutes of limitations on how far back in time you can go (generally, 2-3 years, depending upon what you're claiming and what you can prove; possibly 6 years if you can make out a contract claim), so you shouldn't sit on your claims for too long.

      As for legal fees, my firm represents employees in these types of claims on a straight contingency fee basis in MA. Depending upon your state law and the size and type of your claim, you may find very good attorneys in your state who do the same.

      As for the concept of compromise, I agree, but you should discuss it with your attorney and consider your needs. Compromise can be a very useful tool to speed up recovery and certainly comes in handy when faced with a possible bankruptcy threat. But, each case is very different.

      Good luck.
      This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

      This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

      Comment

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