FAQs17489126.jpgWe discuss the misclassification of non-exempt employees regularly here on the blog and in our presentations at conferences and webinars, but a reader of the blog wrote me before the holiday weekend to ask about the reverse situation. The reader’s company has previously determined (correctly, we’ll assume) that some of its employees meet the “computer

FAQs17489126.jpgIn recent years, I have noticed a movement away from the traditional categories of “vacation” and “sick” leave and holidays to hybrids like PTO, holiday hours, and personal days. While those new categories provide greater flexibility to employees and apparent ease as to record-keeping, they also complicate the question for employers about whether those accrued


This past spring (here and here), I discussed rounding time clock punches (usually automatically with a time clock system) at the beginning and end of a shift. To recap briefly, rounding is the practice of adjusting time clock punch times within specific bounds. For example, if your employees punch in for work at 7:57, 8:01, and 8:02, your rounding rules may treat all of those punches as occurring at 8:00 a.m. for payroll purposes.

Even if it isn’t something that we recommend employers do (absent special circumstances), this practice of rounding employees’ time up or down in increments is permissible under the Fair Labor Standards Act’s (FLSA) regulations under specific circumstances. Paying for actual time worked is always the best practice, but for those of you that can’t easily track time down to the exact minute, Section 785.48 of the FLSA’s regulations provides that employers may utilize time clocks that round up or down in increments of up to a quarter hour so long as the clock rounds both ways, occasionally in the company’s favor and occasionally benefitting employees. 29 C.F.R. §785.48(b). But what if the “rounding” effect isn’t due to the time clock, but access to the time clock? That’s essentially the question one reader sent me recently:

Q.  We do not use a time clock for some of our field employees. Instead, we have them log on to a remote system and send an e-mail when they arrive. Before they leave, they log on to the remote system again and send another e-mail. The e-mail timestamps serve as the punch-in and punch-out times. The problem is that logging onto our server to send this e-mail can take anywhere from 3 or 4 minutes to as long as 10 minutes, start to finish, for these employees. We then round to the nearest tenth of an hour, just for ease of payroll computations. This does not seem like a very accurate way to track time, I know, but is it legal?

While this method might be inefficient, it is nonetheless one practical way to track time for this group of employees that does not have access to a time clock. Ultimately, what our reader describes above is just “rounding” with a twist. Let’s take the easy part first. Rounding entries to the nearest tenth of an hour is one of the enumerated intervals specified in the regulations. 29 CFR § 785.48(b) actually gives you three standard increments you can use: five minutes, six minutes (1/10th of an hour), or 15 minutes (1/4 of an hour). By rounding to the nearest tenth of an hour, this calculation is likely to cut both ways: sometimes in the company’s favor and sometimes in the employees’ favor. Of course, remember to check your state laws and regulations, too, as they may impose additional limitations, or even provide additional incremental rounding options.

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For most of the year, we have been discussing the upcoming FLSA regulations and what employers can expect related to the white collar exemptions. Recently, the DOL delayed the release of proposed rules, potentially for several months. The DOL’s announcement has raised a host of questions, some of which I discussed with SHRM’s legal

FAQs17489126.jpgWith paydays that include the recent July 4th holiday coming up, it is a good time to address a fairly common question for employers whose employees work “alternative” workweek schedules: How should employers handle holidays? For instance, on an HR mailing listserv I participate on, an HR manager recently asked:

Q:        One of our departments works four days a week, 10 hours a day. When they submit vacation or sick time, the request is for 10 hours. But how should holidays be handled? Should they get paid 10 hour holidays or 8 hours like the rest of the employees?

Before we get to the answer, let’s make sure we have the same things in mind about “alternative” schedules. Typically, employers implement two types of alternative work schedules, which I’ll generally refer to as “compressed” and “flexible.” A compressed schedule involves working longer but fewer days each week, so that employees complete a full 40-hour week (or 80-hour biweekly periods) in fewer than 5 or 10 work days. Forbes Magazine published an article last year just before Labor Day extolling the virtues of the 4-day workweek, but there are several ways you can create a compressed schedule. The key feature is that a compressed schedule is fixed; there’s no flexibility about when employees report to and depart work each day. The two most common compressed schedules in my experience are:

  • The “5/4/9” schedule in which employees work 8 9-hour days and 1 8-hour day in the pay period and get an extra day off every other week.
  • The “4-10” schedule in which employees work 4 10-hour days each week of the pay period and have an extra day off each week.

Regardless, employees with a compressed schedule work a total of 80 hours during each biweekly pay period.

As the name implies, flexible schedules are, well, flexible! We’re not talking complete flexibility here; employees typically can’t can come and go at any time. Most flexible schedules have two things in common: a set of core hours when all employees are expected to be at work and flexible time bands that allow employees to vary the hours when they arrive and depart. To give you an example, attorneys at the Social Security Administration’s Office of the General Counsel, my former employer, had to work at least 40 hours each week, but we had flexibility on when we arrived and departed. Attorneys had to report no later than 9:00 a.m. and could leave no earlier than 2:30 p.m. (our “core hours”) but could otherwise work 8 hours anytime between 6 a.m. and 6 p.m. (our “flexible bands”). Want to take a three hour lunch? No problem. Need to leave early for an appointment or come in later so you could get the kids to school? No worries.

So, with these general definitions in mind, how do we handle holidays for workers with a 4-10 schedule?

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