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FLSA Hours Worked Advisor

Recording Hours Worked

The Fair Labor Standards Act (FLSA) requires employers to keep records on wages, hours and other items, as specified in U.S. Department of Labor regulations. Most of the information is of the kind generally maintained by employers in ordinary business practice and in compliance with other laws and regulations.

Insignificant Periods of Time

In recording working time under the FLSA, infrequent and insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes, may be disregarded. The courts have held that such periods of time are de minimis (insignificant). This rule applies only where there are uncertain and indefinite periods of time involved, a few seconds or minutes in duration, and where the failure to count such time is justified by industrial realities. As noted below, an employer may not arbitrarily fail to count any part, however small, of working time that can be practically ascertained.

For example, after clocking in you were assigned to another job. You transported your tools to the new job area and then informed the foreman that you were ill and went home without doing any additional work or clocking out. The time spent transporting the tools would be considered de minimis or insignificant because it was limited to this one time only.

Your employer must count as hours worked any part, however small, of your fixed or regular working time or identifiable periods of time you are regularly required to spend on duties assigned to you.

This policy is one that must be applied with common sense recognizing the practical realities of recording identifiable work time. Setting an artificial time limit is not sufficient. One must consider how frequently the activity is performed and whether the activity is actually part of the work the employee was hired to do.

Use of Time Clocks

Time clocks are not required under the FLSA. In those cases where time clocks are used, if you voluntarily come in before your regular starting time or remain after quitting time, you do not have to be paid for such periods provided, of course, that you do not do any work during this time. Early or late punching of the clock is not hours worked when no work is done.

Likewise, minor differences between the clock records and actual hours worked cannot ordinarily be avoided since all employees cannot clock in or out at precisely the same time. Major discrepancies should be discouraged, however, since doubt is raised as to the accuracy of the record of actual hours worked.

In some industries, particularly where time clocks are used, there has been the practice for many years of recording the employee’s starting and stopping time to the nearest five minutes, or to the nearest one-tenth or quarter of an hour. Presumably, these arrangements average out so that the all of the time actually worked by the employee is properly counted and the employee is fully compensated for all the time actually worked. Such practices of recording working time are acceptable, provided they do not result, over a period of time, in failure to count as hours worked all the time the employees have actually worked.

For more information, please contact your local Wage and Hour District Office.

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