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Hourly Employee/Time Keeping

How does a company prove that an employee is in violation of time policy and being at work on time without an official time-clock? Can we legally punish this employee if we cannot officially prove his/her hours worked?

Employment related decisions such as disciplinary actions cannot be based on protected characteristics. Federal laws prohibit discrimination based on protected characteristics such as national origin, race, color, religion, gender including pregnancy, disability, age for individuals over 40, and citizenship status. Otherwise, assuming the employment is at-will and no collective bargaining agreement exists, employers are free to impose disciplinary actions as deemed suitable.

There must be something that is causing you to suspect the employee is violating company policy and arriving to work late. Your suspicion alone warrants a conversation with the employee. The employee may not confess to wrongdoing; thus, it is up to the employer to investigate the matter.

Ways of proving an employee is in violation of company policy depend on the structure of the company/department and the nature of the business. Consider asking a supervisor to work the same shift in order to confirm the employee’s work time. More costly options include adopting the use of an actual time clock or installing cameras with date/time stamps. It’s also feasible to require the employee to provide proof of his arrival time by asking him to document the work he completes as soon as he arrives. Employers must consider what options are feasible and realistic to implement.

It’s in the employer’s best interest to have some evidence proving the violation. If the employee is eventually terminated, providing proof of the employee’s history of substandard performance will reduce the likelihood of the employee being awarded unemployment benefits. Also, if the employee claims discrimination, solid evidence of the violation will rebut the claim.

Additionally, it’s important to note that under the federal Fair Labor Standards Act (FLSA), non-exempt employees must be paid for all hours worked. If the employer is unable to substantiate hours worked, the hours said to be worked by the employee must be paid. It is up to the employer to establish a time clocking system. So, punishing the employee by not paying him for the time worked would violate the FLSA.

This entry was posted on Wednesday, October 1st, 2014 at 7:22 pm and is filed under
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2 Responses to “Hourly Employee/Time Keeping”

  1. Penny Says:

    We have an employee that had a time clock on his Co cell yet, clocked in on our time yet was working for another Co. The phone had GPS. Ex employee did sign the monitoring agreement as is in our Co Policy. Do we have to write him a letter before taking him to small claims court??

  2. hrlady Says:

    Hi Penny,
    Most, if not all, states require notice to be provided of the attempt to recoup an overpayment. It’s in your best interest to send a letter to the employee prior to filing a claim. It’s also important to be 100% certain that the employee didn’t perform any work during these hours.

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