Employers regularly ask me the question regarding accurate time keeping records, “Are handwritten time cards legal?” The answer is actually Yes. However, making sure the time cards are detailed and accurate is very important. Even electronic time cards are subject to inaccuracies and may not be as valuable as hoped in a court of law. So, what’s an employer to do?
Here is a very interesting case: Tyson Foods Inc. v. Bouaphakeo, (March 22, 2016). The employees claimed they were not paid for their time donning and doffing protective gear. This could possibly take anywhere from a few seconds to ten (or so) minutes per day. When they went to court, Tyson asked to remove employees from the Class Action due to the lack of proof that these activities caused the workers to incur overtime.
Long story short, SCOTUS said that the overtime would be assumed based on the fact that the employer could not prove it had not. This is not the first time a ruling like this has come down from a high court. However, employers still seem to believe the worker must prove their case in order to win in court. Unfortunately for the employer, the burden of proof often rests on them and not the employee(s) bringing the lawsuit.
Best Practices
If handwritten time cards are kept, make sure employees write in actual times in and out. Simply writing in “8 hours, 8 hours, 8 hours…” is not sufficient to prove the overtime did not exist.
Detailed time keeping records should also be kept on overtime exempt status workers. Really? Yep! When considering time keeping records for overtime exempt workers, there are often none at all. Why? Because technically time keeping records are not required on workers who hold overtime exempt positions. However, if the worker is ever flipped to non-exempt after an audit or investigation, the employer maybe put in a position to prove the number of hours the worker “clocked” or possibly pay an assumed number of overtime hours. Perhaps there is more than one worker with hours in question? Based on the Tyson ruling (among others) the employer may be writing some hefty back paychecks.
Read an excerpt from an article written by attorney Salvador Simao:
The Bottom Line
The Court’s decision illustrates the importance of keeping accurate time records for all employees. The Court ultimately found the plaintiffs’ use of representative evidence in this case to be permissible because it filled the evidentiary gap caused by the employer’s failure to keep time records.
Well, there you have it. Changing the process of time keeping in your organization may not be easy. But, as you can see, the change may save a significant amount of money down the road.
Until Next Time, Be Audit-Secure!
Lisa Smith
