Hi Jennifer,
Thanks for last week's employment email on breaks. What about it an employee doesn't clock in or clock out regularly? Can I dock pay?
Thanks.
V
Answer:
A non-exempt hourly employee failure to clock in or clock out does not authorize an employer to dock pay under Federal or New York State law, which, may sound unfair...
Under Federal law, the Fair Labor Standards Act (29 U.S. Code §211(c) https://www.law.cornell.edu/uscode/text/29/211), timekeeping is ultimately the employer's obligation (also see, https://www.dol.gov/agencies/whd/compliance-assistance/handy-reference-guide-flsa#12). As a result, even when employees have failed to submit their properly completed timesheets, the employer must pay them for hours worked when their paycheck is due. Employers must keep track of their employees' working hours and pay them accordingly; therefore, a late timesheet is not a valid reason to withhold or delay their pay.
Under New York State law, employers are not authorized to dock for failure to properly keep time. Under New York State law an employer is authorized to make deductions only for select reasons, including (1) deductions made in accordance with any law; (2) deductions for the benefit of, the employee; (3) Deductions for the recovery of overpayments; and (4) deductions for the repayment of wage advances. See New York State Labor Law Section 195-2.1; https://dol.ny.gov/system/files/documents/2022/09/cr195.pdf.
Not being able to dock does not mean you have to keep the employee. You can write the employee up for non compliance; you can take the employee off the schedule; you can fire the employee (so long as the employee does not have job protected status for some other reason...). There are a few different ways to skin the cat here. Happy to talk through.
