Most employers maintain a written timekeeping policy stating that non-exempt employees should accurately record their time worked. Yet many employers are still facing class action lawsuits alleging off-the-clock claims. Below we detail some key practices companies may consider to strengthen their timekeeping policies and defend against off-the-clock claims.
Policy: Maintain a timekeeping policy that makes the company’s expectations crystal clear, including that the company (1) does not tolerate off-the-clock work; (2) requires employees to immediately report policy violations to HR; and (3) disciplines (including terminates) employees who work off-the-clock or allow others to do so.
Training: Train non-exempt employees and their managers on the timekeeping policy and keep records of the training completion.
Reminders: Issue regular reminders regarding the timekeeping policy and/or post a reminder in the break room that employees are not allowed to work off-the-clock and must report policy violations.
Check-ins: Have managers, HR and/or auditors periodically check in with employees to confirm they are not working off-the-clock.
Certification: Require employees to certify or acknowledge that their time records are accurate. If the time records are inaccurate, require employees to immediately notify their manager or HR.
Take complaints seriously: Thoroughly investigate complaints, discipline/terminate policy violators and pay for reported off-the-clock work.
Remote access: Don’t give non-exempt employees remote access to company systems or e-mail, or make it clear that they must record any such remote access time.
Brinker continues to impact meal and rest period and off-the-clock cases as lower courts continue to grapple with the contours of its application. Several cases at the appellate level were remanded after the California Supreme Court’s Brinker decision, and those cases are now working their way through the lower courts. On our July 6, 2012 blog post, we identified three post-Brinker decisions denying class certification in meal period cases. Below is a brief summary of post-Brinker decisions issued since our last update. Read More
It is no secret that the vast majority of wage-and-hour class actions are settled. What is less clear is the going settlement rate. Researchers from NERA, an economic consulting group, recently answered this question: approximately $1,100 per plaintiff per class year. Click here to view NERA’s full report. Read More
In a highly anticipated decision largely hailed as a victory for employers, the California Supreme Court, in Brinker v. Superior Court, No. S166350 (Cal. April 12, 2012), clarified employers’ obligations to provide meal and rest periods under California law and provided guidance regarding class certification issues in wage-and-hour litigation. On the most contentious of the issues raised in Brinker—the nature of an employer’s duty to provide meal periods under California law—the court held that an employer’s obligation is simply to relieve the employee of all duty for the designated period, with the employee free to use the time for whatever purpose he or she desires, but the employer need not ensure that no work is done. Thus, if an employer relieves an employee of all duty, but the employee continues to work, the court held that the employer will not be liable for premium pay. The court cautioned, however, that an employer may not undermine a formal policy of providing meal periods by coercing employees to skip breaks, creating incentives for employees to forego breaks, or otherwise encouraging employees not to take legally protected breaks. Read More
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