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“Accurate” Time Records Must Actually Be Accurate

Sometimes it is important to get back to basics and refresh our understanding of topics that are already well-known to human resources professionals.  In this season of confusion, particularly regarding the on-again/off-again Fair Labor Standards Act (FLSA) salary test, it is worthwhile to review the timekeeping records that employers are required to maintain with respect to nonexempt employees. Despite clear guidance from the U.S. Department of Labor (DOL), employers make mistakes.

Time ClockThe DOL requires employers to maintain the following information:

  • Employee’s full name and social security number

  • Address, including zip code

  • Birth date, if younger than 19

  • Sex and occupation

  • Time and day of week when employee’s workweek begins

  • Hours worked each day

  • Total hours worked each workweek

  • Basis on which employee’s wages are paid (e.g., “$9 per hour,” “$440 a week,” “piecework”)

  • Regular hourly pay rate

  • Total daily or weekly straight-time earnings

  • Total overtime earnings for the workweek

  • All additions to or deductions from the employee’s wages

  • Total wages paid each pay period

  • Date of payment and the pay period covered by the payment

The DOL has created an exemption to item 7 (record of total hours worked) for employees working on fixed schedules. Under the applicable regulation, in order to satisfy the requirements of the exemption, an employee who works a fixed schedule must indicate in writing that the employee has strictly adhered to the schedule. Further, in weeks in which the employee works more or less than the scheduled hours, the employee must note the exact number of hours worked each day and each week. Reliance on this exception is fraught with risk, however. It is often the case that an employee’s actual working time deviates from the norm, and that the employee or the employer overlooks or is not aware of the need to document the deviation. Also, not all states adhere to this exception.

Employers are permitted to record hours worked in any manner that is complete and accurate. For example, it is permissible to use a time clock; the observation of a timekeeper, such as a supervisor; or via timesheets submitted by the employee.

Special care must be taken to accurately record the time of often overlooked positions, such as employees who work from home.

Why is it important to maintain accurate time records that, in every aspect, comply with the mandates of the regulations? The answer is simple: In addition to facing penalties from the DOL, improper records increase the risk of exposure to wage-hour lawsuits and liability for failure to pay earned wages. Employers are responsible for maintaining compete and accurate time records. The failure to do so will favor the employee’s claims for unpaid wages.

© 2020 Foley & Lardner LLP


About this Author

Bennett L. Epstein, Labor Attorney, Foley Lardner Law Firm

Bennett L. Epstein is a partner and labor and employment lawyer with Foley & Lardner LLP. Since 1978, he has practiced exclusively in the area of labor and employment law and has extensive experience in resolving disputes between executives and their employers, including conflicts concerning age discrimination, written and implied employment contracts, and financial or sexual impropriety. He is an authority on civil rights, downsizing, the Family and Medical Leave Act, Sarbanes-Oxley whistleblower claims, union negotiations and the Americans with Disabilities Act. Mr...