Complete Labor Law Poster for $24.95
from www.LaborLawCenter.com, includes
State, Federal, & OSHA posting requirements

Announcement

Collapse
No announcement yet.

Exempt who must clock in Florida

Collapse
This topic is closed.
X
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Exempt who must clock in Florida

    I have a little different situation and I believe I'm handling it correctly but would like another opinion.

    Our company charges our clients by "billable hours". Every employee must clock in. While our managers are salaried and meet all the requirements for being exempt from overtime, they must clock in for a minimum of 45 hours per week to help cover the cost of their salary. The 45 hours they log at the hourly rate we charge does not cover their entire cost, but without those hours we are losing money and cannot offset a portion of their salary.

    We currently have one manager who is refusing to comply with the "clocking in" procedure and consistently only shows 8-15 hours a week on the clock. His District Manager vouches for him that he is working but since he works at multiple locations he says he "forgets" to clock in and out when he leaves each location.

    I know this is Florida but are we setting ourselves up for a potential claim by this employee if we fire him for failure to following company policy?

  • #2
    Not at all. There is no legal reason whatsoever why an exempt employee cannot be required to clock in and out and a number of valid reasons why they should; client billing, eligibility for hours-based benefits such as a 401k or FMLA, keeping track of vacation, sick or PTO time, even safety, since you can tell instantly who is and is not in the building in case of fire or other emergency. While it is not necessary (in most states) to keep track of exempt employees' time, it is not prohibited either and contrary to popular belief it does not negate the exemption.

    If he were fired (in any state) for refusing to comply with clock in procedures, it would be a legal termination and he would have no legal grounds to sue.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

    Comment


    • #3
      An employer is required to keep accurate time records of all employees. It makes no difference that the employee is exempt. 29 CFR 516.11-12

      Tracking hours goes to other benefits which rely on an hourly quota to qualify for. For example, how are you supposed to know if the employee worked the required hours if FMLA leave is requested?
      Nothing in this post is intended as legal advice. Any advice, citation or analysis contained herein is intended soley for discussion purposes only. If you have concerns regarding your rights under the law, you should consult an attorney.

      Comment


      • #4
        An employer is required to keep accurate time records of all employees. It makes no difference that the employee is exempt.
        That's interesting, because it's not what the DOL says the FLSA says.

        Every employer covered by the Fair Labor Standards Act (FLSA) must keep certain records for each covered, nonexempt worker.
        http://www.dol.gov/compliance/laws/c...#recordkeeping
        Last edited by Pattymd; 12-12-2008, 05:46 AM.
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

        Comment


        • #5
          516.12 - "With respect to each employee exempt from the overtime pay
          requirements of the Act pursuant to the provisions of section 13(b) (1),
          (2), (3), (5), (9), (10), (15), (16), (17), (20), (21), (24), (27), or
          (28) of the Act, shall maintain and preserve payroll or other records,
          containing all the information and data required by Sec. 516.2(a) except
          paragraphs (a) (6) and (9) . . ."

          516.2(a)(5) requires the employer to keep records of the "Time of day and day of week on which the employee's workweek begins (or for employees employed under section 7(k) of the Act, the starting time and length of each employee's work period). If the employee is part of a workforce or employed in or by an establishment all of whose workers have a workweek beginning at the same time on the same day, a single notation of the time of the day and beginning day of the workweek for the whole workforce or establishment will suffice. . . "

          Exempt status does not eliminate the need to maintain time records.
          Nothing in this post is intended as legal advice. Any advice, citation or analysis contained herein is intended soley for discussion purposes only. If you have concerns regarding your rights under the law, you should consult an attorney.

          Comment


          • #6
            Can you please provide the link to the actual regulation, not just selected excerpts?
            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

            Comment


            • #7
              Subpart "A" contains 29 UCFR 516.2, and subpart "B" contains 29 CFR 516.12.

              http://www.dol.gov/dol/allcfr/ESA/Ti...rt_516/toc.htm
              Nothing in this post is intended as legal advice. Any advice, citation or analysis contained herein is intended soley for discussion purposes only. If you have concerns regarding your rights under the law, you should consult an attorney.

              Comment


              • #8
                I will review it in its entirety later, because if it says what you say it says, and it applies to employees, we not only have conflicting information, we have thousands of HR/PR professionals who are going to be
                I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                Comment


                • #9
                  That is a rather interesting quote by Liberty. Federal DOL keeps copies of the regulations on their website and their copy of the 29 CFR 516.2 does not have the same wording just cited.

                  http://www.dol.gov/dol/allcfr/ESA/Ti...29CFR516.2.htm

                  29 CFR 516.2 - Employees subject to minimum wage or minimum wage and overtime provisions pursuant to section 6 or sections 6 and 7(a) of the Act.


                  Section Number: 516.2
                  Section Name: Employees subject to minimum wage or minimum wage and overtime provisions pursuant to section 6 or sections 6 and 7(a) of the Act.

                  --------------------------------------------------------------------------------

                  (a) Items required. Every employer shall maintain and preserve payroll or other records containing the following information and data with respect to each employee to whom section 6 or both sections 6 and 7(a) of the Act apply:
                  "Reality is that which, when you stop believing in it, doesn't go away".
                  Philip K. **** (1928-1982)

                  Comment


                  • #10
                    516.12 incorporates the requirements of includes 516.2(a)(5) not just 516.2(a), which is demonstrated by the specific exclusions of
                    paragraphs (a) (6) and (9) of 512.2.
                    Nothing in this post is intended as legal advice. Any advice, citation or analysis contained herein is intended soley for discussion purposes only. If you have concerns regarding your rights under the law, you should consult an attorney.

                    Comment


                    • #11
                      On the other hand, maybe I just don't care all that much.
                      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                      Comment


                      • #12
                        Originally posted by liberty911 View Post
                        516.12 incorporates the requirements of includes 516.2(a)(5) not just 516.2(a), which is demonstrated by the specific exclusions of
                        paragraphs (a) (6) and (9) of 512.2.
                        True, as far as it goes. Of course the original point that Liberty was trying to make was "An employer is required to keep accurate time records of all employees. It makes no difference that the employee is exempt. 29 CFR 516.11-12". As proof Liberty cites 29 CFR 516.12, which is titled "Employees exempt from overtime pay requirements pursuant to section 13(b) (1), (2), (3), (5), (9), (10), (15), (16), (17), (20), (21), (24), (27),". An example of such an employee is one who falls under the Auto Dealer who is subject to minimum wage but not the overtime premium would fall under these rules. Of course as Liberty knows this is not what most people think of as being Exempt. Most people when them refer to Exempt are talking about the so-called White Collar exceptions (Executive, Administrative, Professional, IT). Those exceptions fall under the 516.11 rules which Liberty briefly mentioned, but choose to not actual cite from. Let's see what those regulations have to to say:

                        29 CFR 516.11 - Employees exempt from both minimum wage and overtime pay requirements under section 13(a) (2), (3), (4), (5), (8), (10), (12), or 13(d) of the Act.
                        With respect to each and every employee exempt from both the minimum wage and overtime pay requirements of the Act pursuant to the provisions of section 13(a) (2), (3), (4), (5), (8), (10), (12), or 13(d) of the Act, employers shall maintain and preserve records containing the information and data required by Sec. 516.2(a) (1) through (4).
                        Going over to the 516.2 regulation just cited and looking at sections 1-4 we see the following. Why this is curious. Where are the time accounting requirements that Liberty just assured us that all Exempt employees are subject? Could it be that the only FLSA regulations associated with Exempt employees and time accounting are only related to those Exempt employees who are subject to minimum wage?

                        29 CFR 516.2 - Employees subject to minimum wage or minimum wage and overtime provisions pursuant to section 6 or sections 6 and 7(a) of the Act.
                        (a) Items required. Every employer shall maintain and preserve payroll or other records containing the following information and data with respect to each employee to whom section 6 or both sections 6 and 7(a) of the Act apply:
                        (1) Name in full, as used for Social Security recordkeeping purposes, and on the same record, the employee's identifying symbol or number if such is used in place of name on any time, work, or payroll records,
                        (2) Home address, including zip code,
                        (3) Date of birth, if under 19,
                        (4) Sex and occupation in which employed (sex may be indicated by use of the prefixes Mr., Mrs., Miss., or Ms.) (Employee's sex identification is related to the equal pay provisions of the Act which are administered by the Equal Employment Opportunity Commission. Other equal pay recordkeeping requirements are contained in 29 CFR part 1620.)
                        "Reality is that which, when you stop believing in it, doesn't go away".
                        Philip K. **** (1928-1982)

                        Comment


                        • #13
                          Which is why I was hoping DAW would do this one instead of me. All those "except as" and "pursuant to the provisions of" take forEVER to link up.
                          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

                          Comment


                          • #14
                            White Collar exempt employees fall within 516.3, entitled, "Bona fide executive, administrative, and professional employees (including academic administrative personnel and teachers in elementary or secondary schools), and outside sales employees employed pursuant to section 13(a)(1) of the Act" and states in relevant part:

                            "With respect to each employee in a bona fide executive,
                            administrative, or professional capacity (including employees employed
                            in the capacity of academic administrative personnel or teachers in
                            elementary or secondary schools), or in outside sales, as defined in
                            part 541 of this chapter (pertaining to so-called ``white collar''
                            employee exemptions), employers shall maintain and preserve records
                            containing all the information and data required by Sec. 516.2(a) except
                            paragraphs (a) (6) through (10). . . "

                            And again, we are referred back to the record keeping requirements of 516.2(a)(5) even for those exempt under the "white collar" exemption.
                            Nothing in this post is intended as legal advice. Any advice, citation or analysis contained herein is intended soley for discussion purposes only. If you have concerns regarding your rights under the law, you should consult an attorney.

                            Comment


                            • #15
                              And following the Liberty's cite the rest of way through ("except paragraphs (a) (6) through (10). . . ") we get the following rules that most Exempt Salaried employees are not required to follow:

                              (6)(i) Regular hourly rate of pay for any workweek in which overtime compensation is due under section 7(a) of the Act, (ii) explain basis of pay by indicating the monetary amount paid on a per hour, per day, per week, per piece, commission on sales, or other basis, and (iii) the amount and nature of each payment which, pursuant to section 7(e) of the Act, is excluded from the ``regular rate'' (these records may be in the form of vouchers or other payment data),
                              (7) Hours worked each workday and total hours worked each workweek (for purposes of this section, a ``workday'' is any fixed period of 24 consecutive hours and a ``workweek'' is any fixed and regularly recurring period of 7 consecutive workdays),
                              (8) Total daily or weekly straight-time earnings or wages due for hours worked during the workday or workweek, exclusive of premium overtime compensation,
                              (9) Total premium pay for overtime hours. This amount excludes the straight-time earnings for overtime hours recorded under paragraph (a)(8) of this section,
                              (10) Total additions to or deductions from wages paid each pay period including employee purchase orders or wage assignments. Also, in individual employee records, the dates, amounts, and nature of the items which make up the total additions and deductions,
                              So when Liberty said "An employer is required to keep accurate time records of all employees. It makes no difference that the employee is exempt. 29 CFR 516.11-12". , by "time records" you were not actually talking about records for hours worked for Exempt Salaried employees right?
                              "Reality is that which, when you stop believing in it, doesn't go away".
                              Philip K. **** (1928-1982)

                              Comment

                              The LaborLawTalk.com forum is intended for informational use only and should not be relied upon and is not a substitute for legal advice. The information contained on LaborLawTalk.com are opinions and suggestions of members and is not a representation of the opinions of LaborLawTalk.com. LaborLawTalk.com does not warrant or vouch for the accuracy, completeness or usefulness of any postings or the qualifications of any person responding. Please consult a legal expert or seek the services of an attorney in your area for more accuracy on your specific situation.
                              Working...
                              X