Georgia Changing Clocking Times

[ditchdoc1]

I work for a local hospital based emergency medical service. Recently, almost all of the employees have noticed that the department manager has been going back into out timeclock system and changing our times. (Examples: I clocked in at 0854 and he changed it to 0900. Later I clocked out at 1720 due to a late call and he changed it to 1700. The scheduled period was from 0900-1700.) The hospital policy states that an employee can clock in up to seven minutes before or seven minutes after the scheduled clock in/out times with no penalty and to facilitate passing on pertinent information between crews. We use a computerized (API) clocking system that calculates pay by the minute. Of approximately 50 employees, there are only a few people that have not had their times changed.

Is this legal for him to do if it is stated in the hospital policy and if the late or early times are for legitimate reasons?

[DAW]

There is a federal law called FLSA that covers this. Generally speaking absent a specific exception, employees must be paid based on actual time worked. I always get a little uncomfortable when people get too attached to time clock arguments because the law mostly is talking about time worked, not who did what to the timeclock.

One of the exceptions is rounding. When people are talking about "7 minutes", they are generally talking about the FLSA rounding rule. However this rule is a door that swings both ways. If the employer uses this rule (and the employer does not have to use this rule), then the rule must be used both ways - both when it is in the employer's favor and when it is in the employee's favor.

A 20 minute change was mentioned. That is too big to fall under the rounding rules.

Past that, the law is the law. Employer policy cannot make the law go away. Employees are paid based on actual hours worked unless the employer can support an actual exception in the law. There is no employer policy exception in the law.

Federal fact sheet on hours worked.

[ditchdoc1]

The hospital does not use a rounding rule. When we are late or early getting off or coming on we are supposed to sign an "extra duty log" in the shift captains office. The assistant chief then goes over this while verifying time and basically "justifies" what he wants to. However, as stated in the last post, "the rule must be used both ways - both when it is in the employer's favor and when it is in the employee's favor". This is not the case. In every instance on my and other employee's time records, the clock times have been changed to the hospital's favor with NO accommodations given to us. Doing a rough calculation, this equivocates to the hospital getting out of having to pay thousands of dollars a year and shorting us income we have earned; and that's just for our department. I wonder if other managers hospital wide are doing this which could implicate some major issues with shorting times considering they employ nearly 2500 employees.

[Pattymd]

So, you are supposed to be paid to the minute?

You can file a claim with the federal Dept. of Labor or a civil suit in the Georgia courts.

[ditchdoc1]

Travel

What about travel time? I was on shift for the second half...1900-0700 and was asked to work the first half...0700-1900 at another station. I did not clock out since it was travel to another station at their request. now they are saying I had to clock out before leaving and clock in when I got to the other station. Their explanation is that, if I had been involved in an accident, I had to clock out so the hospital would not be liable, even though it was travel required by them to get to the other station.

[DAW]

There are some specific regulations related to travel time, 29 CFR 785.33 - 785.41. Your answer is in one of those regulations. You basically need to read the group and find out exactly which regulation most closely fits your situation. Just a thought but the word "station" is something specific to your employer and not a phrase commonly used in labor law.

[C.A.H.]

As a general rule under the FLSA as amended by the Portal-to-Portal Act, time spent on work travel between your first place of work for the day and another place of work during the day before your return commute home should be compensable time for which an employee should be paid. Consult with an attorney on the specifics of your work travel.

The situation you have described appears to involve improper rounding or failure to compensate for hours actually worked, as well as uncompensated travel time, which could be a violation of the overtime provisions of the FLSA if you worked over 40 hours in a work week in which that occurred.

For the basics on what a Georgia employee can do if he is not receiving the overtime compensation required by law, allow me to paraphrase many previous posters before me (including myself):

• Because Georgia does not have a separate wage and hour statute governing overtime, a Georgia employee's overtime rights are limited to those under federal law (i.e., the Fair Labor Standards Act)
• Employees can either (i) file an overtime complaint with the U.S. Department of Labor, which can only recover his unpaid overtime wages for him if successful; or (ii) find an attorney with experience representing employees in wage and hour claims to bring a civil suit, which can result in recovery of both unpaid overtime wages and potentially an additional equivalent amount as liquidated damages, in addition to an award of attorney's fees and costs if successful.

As I've discussed in prior posts, there are significant pros and cons to each approach that warrant consideration. For example, (i) although employees are presumptively entitled to recover not only their unpaid overtime pay but also an equivalent amount as liquidated damages (i.e., double damages) in addition to their attorneys' fees and costs, these full damages can only be recovered if you file suit in court -- the DOL cannot award liquidated damages, nor can it require the reimbursement of your attorneys' fees; (ii) the statute of limitations (normally 2 years, 3 years if the violation is willful) continues to run until the employee files a lawsuit in court, regardless of whether they may have filed a claim with the DOL, which means that in a hypothetical situation in which an employee proceeds for 6 months with the DOL before giving up and filing suit, that employee will have lost his or her right to recover overtime pay for that entire six month period two (or three) years prior to the date suit is filed because the statute of limitations continued to run on those claims; and (iii) proceeding with the DOL can often be less hassle and more expedient for the employee than proceeding in court if the DOL actually succeeds in recovering the unpaid wages -- again, however, there are significant trade offs such as sacrificing one-half of the available damages for an employer's violation.

Employees who are considering legal action to recover unpaid overtime wages should consider consulting with an attorney who has experience representing employees in wage and hour claims. My colleagues on this forum generally recommend that you go to www.nela.org to find a qualified attorney in your home state who has experience in wage and hour claims, because the NELA attorneys listed in that directory dedicate at least 51% of their law practice to representing employees (as opposed to those employment attorneys who primarily represent employers/management).