A Bit of Twist
Posted on 06-Apr-09 by The Timekeeper
From the Mountain View Voice, in Moutain View, CA, comes a familiar story: a car wash being ordered to pay workers back wages. Yeah, I know, there’s a shocker, right?
Car washes are among the business types most often targeted by the Wage and Hour Division because they’re a low-wage, hourly-pay business that often employs immigrants — which regular readers here will know are all areas that have been identified by the DOL as carrying high risks of worker underpayment.
The twist on this one: they would make workers show up on time for work every day, but wouldn’t allow them to clock in until the business received its first customer. According to investgators, on slow days this could mean workers would be sitting around “off the clock” for as much as an hour.
The upshot: the car wash owes 270 current and former employees $268,501 in back wages.
See, if workers voluntarily arrive prior to their scheduled work time (say, so they can have a leisurely cup of coffee and a pastry in the company cafeteria before starting work), it’s OK for a company to not count that as “work time.” (Because… well… it’s not work time, and the company didn’t make them show up — they came in early voluntarily.)
In fact, some companies even program their time and attendance systems or their punch clocks to prevent employees from clocking in too much before the start of their scheduled shift so they don’t end up paying for a lot of coffee-and-donut time. If employees have to clock in earlier (for instance, because of a company request for them to work overtime), their supervisor has to specifically allow and approve the early clock-ins.
But when you’re an hourly employee, and the company tells you that you have to be there at a certain time to start your shift, and you show up on time, and they don’t release you even though they don’t have actual work for you to do right that instant but they might later so they want you to hang around the premises just in case, then they have to let you clock in. And they have to pay you for the time.
If the business doesn’t think they’re going to be that busy for the day, then they can send hourly people home and they won’t have to pay them for the time they don’t work. But they can’t make them hang out at the place of business — off the clock — indefinitely, waiting for customers to come in.
This is why I always stress how you as a company owner need to talk with an attorney familiar with wage and hour law, have them do a wage and hour audit from time to time. I bet any competent wage and hour lawyer could have told the car wash folks that forcing people to show up for work but not allowing them to clock in was a very bad idea. And they might even have charged less than $268,501 to do it.
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