Nowadays, many employers rely on digital time-tracking software to monitor when employees are working. It may be more efficient than the punch clocks of yore, but a new study published in American Business Law Journal found that it contributes to wage theft and that hourly employees like nurses, drivers, and factory employees, are particularly vulnerable to losing their hard-earned money to digital time-tracking.
‘Time shaving’ and automative break deductions unfairly reduce hours actually worked
Elizabeth Tippett, associate professor at the University of Oregon School of Law, looked at 330 court cases to identify how digital wage theft happens through these tracking systems. She identified three patterns of how it happens:
1. Automative break deductions, which “involves subtracting a preset increment of time (usually thirty minutes) from employee hours to reflect their scheduled meal break, regardless of whether the break is taken”
2. Rounding, which happens when employers “set their timekeeping software to alter employee punch time in a preset increment”
3. Time shaving, which occurs “when supervisors alter employee time records to reduce recorded hours”
Break deductions and rounding are a legal gray area. There are no explicit rules around them under The Fair Labor Standards Act (FLSA).
“Existing rules tacitly allow employers to extract unpaid labor from employees and make it very difficult for employees to reclaim the wages associated with such labor,” Tippett argues. Employees may not even realize they are being unfairly docked if they do not have electronic access to their own time records. And employees and consumers are not incentivized to change this. Digital wage theft happens often at the benefit of the employer keeping payroll low and the consumer getting lower prices for services.
Tippett details the case of Jara Willis, a nurse in the intensive care unit of a Texas hospital, to demonstrate how employers get away with uncompensated labor. “The hospital allotted [Willis] thirty minutes per day for a meal break, but it was almost always interrupted or cut short with requests from ‘other nurses on the shift, from physicians, and from patients and their families,'” Tippett writes. “Over the four years [Willis] worked at the hospital, she could not recall a single uninterrupted meal break.”
Digital time-tracking systems default in the employer’s favor
Employees like Willis get pay deducted for breaks they never have the chance to take, in other words. You only had a chance to nibble on a muffin for five minutes, but you still get thirty minutes of pay deducted. One solution to this, Tippet suggests, would be if the FLSA required employees to be paid for each hour worked.
Tippett also suggests penalizing time shaving, because your manager altering time records is not a legally ambiguous practice — it’s clearly wage theft. Automatic break deductions should also ultimately be banned, Tippett recommends. We can also fight erroneous data collection with new technology that asks for more accurate timekeeping. Tippett suggests a “pop-up window at the end of the day that asks, ‘It looks like you missed lunch. Is this accurate? (Yes or No).”
Until the law changes, employees will continue to be forced to work off the clock to meet their boss’ demands. To stop this, there would need to be more uproar around the unfairness of this. Tippett wants us all to question “whether it is wise to extract uncompensated labor from those who care for our loved ones, and who process, transport, and serve the food we eat.”