Human Resource Blog

While most states require that hourly employees be paid bi-weekly, North Carolina permits them to be paid monthly. Yes, you must inform the employees in advance that the payday has been changed. Otherwise, you are violating the North Carolina law that requires all wages to be paid in full on payday.

The best practice would be to let employees know at least one month ahead of time that you will be switching to a monthly payday. Then, issue the final two-week check at the end of one month, and switch to the new payroll schedule the following month.

Unfortunately, no, there is not more detailed information on what constitutes a manual worker. The info from the New York Department of Labor is the final word on this, and even the state courts usually follow that guidance. To be on the safe side, an employer should consider any employee who works with his or her hands (as opposed to a desk job or health care, retail, clerical) a manual laborer.

As far as the purpose behind the law, to get a definitive answer you would have to ask the legislators who passed the law. We will say that 40 or 50 years ago, weekly payment was standard. The lawmakers may have also assumed that those who performed manual labor were low-paid workers who lived from paycheck to paycheck, and needed their money weekly. Today, of course, a plumber makes as much as a dentist, but this outdated law is still on the books.

The answer is: that depends on whether your timeclock is set up to round time in and out or not.

Generally speaking, both the federal and New York minimum wage laws require that an employee be paid for all the time worked. Whether an employee punches in an hour early or 5 minutes early, if he goes to work you must pay him for that time. You can discipline or terminate the employee for clocking in early, by you must still pay him for the time worked.

If the employee clocked in early and simply stood around chatting or drinking coffee instead of working, then he would not be entitled to payment for that time. However, be cautious with this. Things like walking to the work station, finding a pen and turning on the computer count as work time.

However, it is legal under both federal and New York law to set up your timeclock system so it automatically rounds the punches, as long as the rounding is in the employees favor 50 percent of the time. Many employers use the 7-minute rule for rounding to the nearest quarter hour, so that when an employee clocks in at 7:52, it is rounded to 7:45. When an employee clocks in at 7:53 or later, it is rounded to 8:00. Using this system, an employee who clocked in at 7:55 and out at 5:05 would be paid from 8 am to 5 pm.  

It would not be legal to set your time clock so that it rounded 7:45 to 8 am, and rounded 5:15 to 5 pm. Many newer payroll systems will do this, but it is not legal.

It is also legal to use a system that rounds the time worked to the nearest 6 minutes, or 1/10 of an hour. But again, the sytem must round 4 minutes to 0.1 hours, whether that results in the employee being paid more or not. Using that system, the employee in your example worked 8.2 hours that day.

The old adage *you cant have your cake and eat it too* comes to mind. Either an empoyee is exempt or non-exempt, you cannot have it both ways.

The best practice is for part-time employees to always be non-exempt. Remember that the federal FLSA says that you may treat certain employees as exempt. It never says that you must treat them as exempt. Even the CEO could be a non-exempt employee if you wanted. (However, you cannot flip the same employee back and forth from exempt to nonexempt.)

If the employee is non-exempt, you pay her by the hour. She earns more when she works 35 hours than she earns in a week when she works only 20 hours. You also have the flexibility to schedule the employee for fewer hours, saving money. However, a non-exempt employee is always entitled to overtime when working more than 40 hours in the payroll week.

If you treat this employee as exempt (assuming she meets all the other tests) then she must be paid the same salary every week, whether she works 15 hours or 115 hours. There are a number of pitfalls in exempt status for a part time employee. As you have noted, it is hard to forecast her hours correctly, to offer a fair salary. Even worse, at some point in the future a supervisor could conveniently forget that the employee is part time and require her to work 50 or 80 hours per week for the same salary.

To be fair and protect the organization, you should treat this part-time employee as non-exempt. You can legally do so, even if full-time employees with the same job duties are treated as exempt.  

Since Jane is an exempt employee, she is entitled to her usual salary for the full day when she works any portion of the day — even 5 minutes. Jane did report to work, and her supervisor is aware of that. Therefore, Jane must be paid for the full day. (Janes supervisor should have signed her in and out, since Jane forgot.)

Even if Jane only checked her email on her blackberry once or twice during the day, that is work and she is entitled to her full salary for the day. This is the downside for the employer to employees being connected 24/7 — they are almost always entitled to payment for the day. An exempt employee who does any work at all, even 5 minutes of work, must be paid the full days salary. Checking email and participating in a conference call from home count as work.

Whether this time is counted as paid sick leave or a day worked is a matter of company policy. In most states, the law does not address how this time will be tablulated. Federal law simply requires that an exempt employee who does any work at all, be paid for the entire day.

Jane must be paid for the day. Not paying her would be appropriate (and legal) only if she did not come to work, and did no work at all that day (even from home, even checking email on her blackberry), and had no remaining sick leave.

It sounds like payroll is working under the assumption that Jane did not work at all on this day, because she did not sign in or out. That is a reasonable assumption given the facts that they have. We will also say that payroll is treating Jane like a non-exempt employee. If she is in fact non-exempt, then that would change the answer.

It is also not reasonable for the employer to expect an employee to be available when she is on sick leave. That is the purpose of sick leave — it is time off.