Punch the Clock Day is celebrated annually on January 27. It is a day to recognize the ‘punch the clock’ system of clocking in and out of work. Other names for the punch clock include time clock, time recorder, or clock card machine. Most companies have moved away from the original mechanical time clock to computer-based ones that use smart phone or tablet technology. But the concept is still very much applicable, and while we’ll admit that it is one of the more random holidays, it is a great opportunity to talk about one of the most common problems for workers in the US, Wage Theft. But again a quick history on the punch clock.
Historically, hourly wages were calculated based on manual data kept by employers. Managers would write down records of hours worked by employees and determine payroll accordingly. This, however, left a lot of room for miscalculation, workplace disputes, and discrepancies in the money paid and money owed. Employers could write down fewer hours to pay less, and employees could claim they worked more to get paid more, with no secondary source to double-check.
Then came the Punch the Clock system. In 1888, Willard Le Grand Bundy, invented a clock where employees could punch in and punch out the hours they worked. An employee would punch their card into the clock, with their exact work hours logged onto it. Employees got paid what they earned, and employers only paid what they owed, a revolutionary change in hourly-wage workplaces.
Over time, this system has become even more advanced. Due to technological advancements, wage calculating systems have become digitized and more secure and accurate than ever. Employers can invest in software that tracks employees’ hours on their computers, biometric trackers that store employees’ hand prints and eliminate proxy punching, scan unique barcodes on identification cards, and so much more. And supposedly, the system of tracking and paying employees by the hour was supposed to be fair and efficient.
Or at least that’s what was supposed to happen. However, issues with workers’ not getting properly paid are so common, I have a colleague’s office practically on speed dial. My friend and fellow attorney Bob DeRose is a Partner at Barkan Meizlish DeRose Cox, LLP. His practice these days is almost exclusively in wage and hour/overtime issues.
The following is their information on this issue and your rights from their website (portion in italics);
Holding Employers Accountable for Paying Workers Fairly
As wage and hour attorneys, much of our work is done under provisions of the FLSA and the Ohio Minimum Wage Fair Standards Act (“the Ohio Wage Act”). For the majority of hourly workers, the federal law mandates time-and-half for each 15-minute increment of work performed in excess of 40 hours during a 7-day week. Questions over who, exactly, qualifies to earn overtime get complicated and the answers change with updates to U.S. government policies. Anyone with concerns about possible unpaid overtime should consult with an attorney.
Beginning in 2020, the Ohio Wage Act requires employers to pay most workers at least $8.70/hour for each hour an employee works. Tipped employees such as wait staff, bartenders and dog walkers can be paid $4.35/hour, but their average hourly pay must still total at least $8.70. Every Ohio resident who earns the minimum wage is assumed to be eligible for overtime, even those who take tips.
Employers engage in many illegal and deceptive practices to deny employees the minimum wage and overtime pay. Barkan Meizlish DeRose Cox, LLP, are available to assist workers who fall victim to any of the following problems.
Miscategorization of Employment Status
In order to avoid minimum wage and overtime laws, unscrupulous employers often miscategorize full-time and part-time employees as independent contractors. The federal government and the State of Ohio enforce rules that determine which workers must be paid at least minimum wage and overtime as employees. At their most basic level, those rules treat a person as an employee if he or she reports regularly to a single worksite, works under the direct supervision of a manager employed by the same organization, and depends on the organization for the equipment and resources needed to complete tasks.
Kurt’s note - The Independent Contractor game is very common in workers’ compensation too. If you employer says you are one and pays you with a 1099, it is not the deciding factor. In fact the Ohio Bureau of Workers’ Compensation and the Industrial Commission of Ohio look at a 20 part checklist. So if you get hurt and your boss says you can’t file because they don’t have coverage, you can. If they say you can’t file because you’re not an employee call us or another competent attorney. It’s not like they have a whole load of reasons to lie to you, oh no, they do.
Misclassification of Eligible Overtime Hours
Misclassification occurs when an employer treats an overtime-eligible worker as ineligible for overtime. The legal terms are “exempt” and “nonexempt,” with earning a high salary, supervising co-workers, and/or performing professional duties as evidence of exempt status. Employers sometimes misreport earnings and give a person a professional-sounding job title in order to unlawfully deny earned overtime pay.
Employers cannot require overtime-eligible or hourly employees to do uncompensated work. This means that managers cannot insist that tasks be completed before an employee clocks in or after an employee clocks out. It also means that mandatory unpaid overtime, clocking employees out without their knowledge, and withholding overtime pay as a punishment are illegal.
Illegal Deductions of Employee Wages
Employers are allowed to make certain deductions from workers’ wages for uniforms, special equipment, and employee-caused losses such as money drawer shortages and damage to company property. However, deducting wages for work performed as a punishment for a policy violation is not allowed. Nor can an employer deduct so much from an employee’s pay that the worker ends up earning less than the minimum wage.
Illegal Rounding of Employee Hours
Rules put in place to ensure employees get paid for each hour they work require employers to record work time in 15-minute increments. Periods of 1-7 minutes can be rounded down to the previous quarter-hour; periods of 8-14 minutes must be rounded up. Some employers cheat workers by always rounding down. Other employers refuse to record workers’ time in increments shorter than half hours or full hours.
Misreporting/Miscalculating Employee Break Time
Employees cannot be required to work during unpaid breaks. Also, employers cannot require workers to clock out for breaks that are shorter than 20 minutes. What this means in practical terms is that workers cannot have their pay docked for taking bathroom or other short breaks.
Withholding Pay for Employee Travel Time
Traveling for work—but not commuting to work daily—is what the law and lawyers call “compensable.” The time spent driving to call on clients must be paid time. So must the day spent flying from headquarters to a business meeting. Overtime accrues while traveling for work, as well.
Poor or Fraudulent Record-keeping of Employee Hours and Wages
Laws like the FLSA require employers to keep accurate, detailed, and reviewable records of hours worked and wages paid. A worker cannot be held responsible for keeping track of wage and hour details. Employers who misreport worktime and pay cheat workers even when the errors are not made intentionally.
A Unpaid Wage Attorney Who Fights for Workers
Employees have legal rights to demand fair wages and earned overtime. The laws and regulations that enforce these employee rights, however, also impose tight statutes of limitations. As soon as you notice that your employer is engaging in illegal pay practices, contact the experienced wage and hour attorneys at Barkan Meizlish DeRose Cox, LLP.
In addition to explaining your legal options, our Ohio employee rights lawyers can help you identify and obtain essential evidence. Our lawyers may also be able to identify other workers the employer has underpaid and exploited and form a group of plaintiffs that has more influence than one individual.
Can I Afford an Attorney?
Our wage and hour attorneys understand that when it comes to wage theft, it can feel like an impossible task to go up against your employer. With the cost of attorney fees often outweighing the lost wages in question, many affected by wage theft choose not to pursue legal action. Fortunately, 29 U.S.C.sec 216(b) sets guidelines for fee-shifting. This practice gives employees who successfully bring claims of FLSA violations against their employers the opportunity to have the cost of their attorney’s fees shifted and become their employer’s responsibility. This means that your employer pays your attorney and not you.
So, ever had someone try to do this to you or someone you care about? Contact us and we can connect you with Bob & his team to help take care of this. Call us at 419-244-7885. And don’t let an employer take away your workers’ compensation rights by calling you an independent contractor and not filing. Call us and we can look at the facts with you and give you an unbiased take on whether you really are an employee or not.
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