What is an employer's recourse when nonexempt employees are punching in 15 to 30 minutes early or punching out 15 to 30 minutes late on the employer's time clock? Should employers calculate hours worked based on time clock records, even if employees worked unauthorized overtime? In this video, HR.BLR.com Legal Editor Susan Prince outlines what an employer can do--while staying in compliance with the law-- when faced with such a scenario.

Hi. I’m Susan Prince, a Legal Editor at HR.BLR.com. We recently received an Ask the Expert question from one of our subscribers on overtime and time clocks.

A subscriber wrote "Our procedure of paying overtime is for non-exempt staff to fill out a form of the hours they will take as overtime and have a manager sign it. But because they are non-exempt employees they also clock in and out using a time clock machine. Some employees often punch in 15 to 30 minutes early, or 15 to 30 minutes late, but they are not filling out the overtime form.

When tracking their hours, should we follow the forms or calculate their hours based on the time clock records? We want to avoid any lawsuits from employees about their hours."

The federal Fair Labor Standards Act, or FLSA, and the laws in most states require that employers keep accurate records of hours worked and wages paid to nonexempt employees. Records of hours worked can be tracked using handwritten time cards, punching time clocks, or through the use of electronic badge readers or hand scanners. Any one of these methods is fine as long as accurate records are kept.

Employers should adopt a written policy letting employees know that they are responsible for accurately recording the times they arrive at and leave work. This policy also should inform employees of the consequences for deliberately falsifying time cards or clocking in for other employees, which may include immediate termination of employment.

FLSA does not require employees to be paid for their time spent changing or washing up, unless the activity is a "principal work activity," so theoretically, early or late clock punching may be disregarded. However, if an employee later claims that he or she was working but the time at work was not recorded, the employer may end up paying the employee for that time.

This is because the employer generally will not be able to prove otherwise, and in such a circumstance a court will rule in favor of the employee. To be safe, employers should ensure that an employee clocks in when he or she is ready to begin work and clocks out as soon as work time is done.

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