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BusinessColumnistsCarrie Mason-Draffen

Executive questions legality of having to punch in and out

The federal Fair Labor Standards Act record-keeping

The federal Fair Labor Standards Act record-keeping "regulations do not limit an employer's ability to track working time. Consequently, it is not a violation of the FLSA or its implementing regulations for your employer to track your working time, even if you are an exempt employee." Photo Credit: Getty Images/iStockphoto / alf75

DEAR CARRIE: I am a director at a large manufacturing company. I always believed that as an exempt employee I didn’t have to punch a time clock. I didn’t think the company could legally track my hours each day, especially if it uses the clock to tell me I’ve got to make up hours when I occasionally fail to work an eight-hour day.

The company claims it uses the time clock to determine who is in the building in case of an emergency. But that doesn’t ring true because we have to swipe our ID cards to get in and out of the building. The time clock won’t tell them when I leave to go to another building or out to lunch because exempt employees don’t have to punch in and out for lunch. Besides, I know of other senior staff like myself who don’t have to punch the time clock. Yet, I am always being called out for not following procedures if I happen to miss a punch for some reason. What are the rules about exempt employees and time clocks? — Timely Beef

DEAR TIMELY: Companies can legally require exempt employees to clock in and out. Here is what an opinion letter on the U.S. Labor Department’s website says:

The federal Fair Labor Standards Act record-keeping “regulations do not limit an employer’s ability to track working time. Consequently, it is not a violation of the FLSA or its implementing regulations for your employer to track your working time, even if you are an exempt employee.”

But what the company cannot do when you work less than a full day is dock your pay. Exempt workers’ pay can be docked only if those employees miss a full day of work for personal reasons.

And that brings me to another important point of your situation: being asked to make up time. That’s legal, too.

“An employer may require an exempt employee to make up work time lost due to personal absences of less than a day without loss of the exemption,” another department opinion letter states.

Your exempt status means the company doesn’t have to pay you for any extra hours you work, nor does it have to pay you overtime when you work more than 40 hours a week. To preserve that exemption, your company cannot dock your pay willy-nilly.

That means that unless a labor law exception comes into play, your employer has to pay you a salary of at least $455 a week under federal law ($675 in New York). Both of those basic salary amounts are scheduled to jump to $913 a week on Dec. 1 under a new U.S. Labor Department regulation.

DEAR CARRIE: Can an employer change your schedule without telling you once it is already posted on the wall? I was on vacation, and I returned to work on the day posted before I left. I was about to punch in when a manger said, “Oh no. You didn’t call in to find out your hours.” She had scheduled someone else to work in my usual slot. In the three years that I have worked at the store I was never required to call in. What’s more, my schedule never changed. Despite that, the manager changed my schedule without telling me. Is this legal? — Moving Schedule

DEAR MOVING: I checked with the state Labor Department, which said it was unable to offer a definitive answer because of the number variables that would be involved such as your industry, pay rate and hours scheduled.

“Depending on those variables, there may or may not be a violation of the labor law here,” the department said.

It suggested you call 888-4-NYSDOL (1-888-469-7365) for guidance.

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