B. Recording Working Time

As noted above, under 29 C.F.R. 516.2, employers must generally keep accurate records of all hours worked for non-exempt employees (working "off the clock" is never allowed for non-exempt employees). The exact method of recording the time worked is up to the employer, but it must be in a form that can be made available for inspection and copying by the DOL in the event of an investigation. Failure to keep records of hours worked is a risky proposition. Not only would that be a violation of part 516 of the regulations, it would also leave the employer at the mercy of the "best evidence" rule. Specifically, in the area of time worked, whoever has the best evidence of work time will prevail on that point. If an employer keeps no records, it is at the mercy of an employee who has maintained a personal log of hours worked. Unless there is a reason to disbelieve the employee and his or her personal log, that will generally be taken as the best evidence of the time worked, even if the employee may have been overly generous in crediting himself or herself with hours worked.

There are many different ways to record employees' work times. One is by designating a person to serve as timekeeper and manually enter starting and stopping times on a piece of paper. Another is to have employees fill in their own work times. Employers can have employees punch a time clock. Some companies with advanced systems have employees "swipe" their company ID cards or badges through a device that electronically records the time and enters it into a timekeeping database. Finally, some companies ask employees to enter their own times on their computers, or else use a telephone-based system to record their times. Regardless of the method used, it is subject to the requirements of part 516 and the "best evidence" rule in the event of a dispute.

If anyone makes revisions to time records, there should be a reliable log of all such changes and who made them. Time records, both original and modified, are subject to potential challenge by employees, so maintain the records in such a way that an outside auditor (such as from the U.S. Department of Labor in a records compliance audit situation) can tell that the revised and unrevised records are true and genuine and reflect what actually happened in terms of time worked, wages paid, and who made what changes at what time. Changes made to electronic time records would presumably need some sort of digital verification and security protocols, so ask your IT staffer to ensure the integrity of the system and that all access and changes are properly logged and allowed only with proper access codes. At some step of the process, it would be prudent to get the employees to sign off on any changes. That can be done electronically, but is, like any step of the process, subject to challenge by an employee who might feel cheated in some way. Have your IT staff work with your timekeeping software vendor regarding security, access, and verification issues.

For a sample policy on recording of work time, click here.

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