I am a person who is always early to work; and I recently checked my pay stub and noticed that I am not being paid all my time worked when my supervisor said I was allowed to clock 7 minutes before work and also 7 minutes after work. They round my time card to exactly 40 hours a week when in reality I am working 41.17 hours approximately.
Hi Maricruz,
Thank you for your question. I am going to assume you are a nonexempt employee in California. It sounds like your employer might be underpaying you, but I would need to know more facts to be sure. Your question raises a few issues, which I will address below.
Employer’s Cannot “Cap” the Hours They Pay
The general rule is that employees must be paid for the time they are working or are subject to the control of their employer. (Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 582.)
In your case, if you clocked in 7 minutes before work and immediately began working or became subject to your employer’s control, then you would need to be paid for that time. If, however, you clocked in and sat around until your shift actually started, then your employer might not be obligated to pay you for that time.
The most alarming part of your question is when you said:
They round my time card to exactly 40 hours a week
If your employer has a formal policy in which they refuse to pay you more than 40 hours per week, even if you work more than that, then your employer is breaking the law.
Employers Can Punish Workers Who Violate Time Clock Policies
One important thing to note: the fact that your employer is required to pay you for all time worked doesn’t mean they have to be happy about it. If your employer has a policy that prohibits you from clocking in early or clocking out late, and you willfully violate that policy, they can choose to reprimand or fire you.
They cannot, however, choose to simply not pay you for hours you worked. Nor can they retaliate against you if you seek payment for the time you’ve worked. Perhaps most importantly, your employer cannot pressure you to work off the clock.
For example, if they ask you to work late but then punish you for violating their policy of not clocking out late, their actions might be construed as encouraging you to work off the clock. If so, they might be breaking the law.
Employers Cannot Adopt Unfair Rounding Policies
If your employer has adopted a rounding policy that is applied to each individual shift, then your question also raises a different issue—whether your employer’s rounding policy is lawful.
If your employer is rounding down seven minutes of time, they must be rounding to the nearest quarter-hour or so. Or even worse, they’re rounding to the nearest hour. There is a strong chance that such a policy would break the law.
When it comes to rounding, employers are generally permitted to adopt a rounding policy when it comes to tracking their workers’ hours. That rounding policy, however, must meet a few requirements:
- The policy must be fair and neutral on its face; and
- The policy must be applied in a way that, on average, it favors neither overpayment nor underpayment.
(See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 907.) If the policy is designed to systematically undercompensate employees, then it will be found unlawful.
Courts have approved policies that round to the nearest tenth of an hour. But that policy would include rounding up as well as rounding down.
If your employer adopted a rounding policy and you clocked in seven minutes early, they would be permitted in rounding to the nearest six-minute interval. But they could not adopt a policy where the rounding is always rounding down, rather than sometimes rounding up.
I have not seen any cases approving a rounding policy that rounded to more than the nearest tenth of an hour. As mentioned above, it sounds like your employer is rounding to the nearest quarter of an hour or so.
There is a fair argument that a policy with such a large rounding margin would be designed to systematically undercompensate employees who clock in a little early or leave a little late. If a court found that to be true, then the policy would be considered unlawful.
The law on rounding policies is still developing, so I cannot give you a definitive answer. But I think there is a strong chance your employer is violating the law here.
Final Thoughts
As you can see, your question raises a number of issues. I think there is a strong chance your rights are being violated, but I would like to know more about your situation before I can be sure.
I strongly suggest you contact an employment lawyer about your situation because you may have a right to additional compensation.
You didn’t provide us with any contact information, but if you would like to call us to learn more about your rights or to give us more facts about your situation, we would be happy to speak with you.