• A listing of basic records for employees must be maintained by employers, according to the FLSA.
• Certification of timecard records filled out by workers can prove beneficial when questions of falsified or disputed hours arise.

Under the Fair Labor Standards Act (FLSA), every covered employer must keep certain records for each nonexempt worker. The FLSA requires no particular form but does require that records include certain identifying information about the employee and data about hours worked and wages earned. The following is a listing of the basic records:

• Employee’s full name and Social Security number;
• Address, including ZIP code;
• Birth date, if younger than 19;
• Sex and occupation;
• Time and day of week when employee’s workweek begins;
• Hours worked each day;
• Total hours worked each workweek;
• Basis on which employee’s wages are paid (e.g., “$9 an hour,” “$1,000 a week,” “piecework”);
• Regular hourly pay rate;
• Total daily or weekly straight-time earnings;
• Total overtime earnings for the workweek;
• All additions to or deductions from the employee’s wages;
• Total wages paid each pay period; and
• Date of payment and the pay period covered by the payment.

According to the FLSA, employers need not keep records of hours worked by exempt employees. It may be beneficial, however, to do so, since such records are evidence of wages and hours, and can be called into question should a lawsuit be brought alleging inappropriate pay or scheduling activities. Also, state laws may require keeping such records for exempt employees.

Some companies require all employees, exempt and nonexempt, to use the same type of forms for recording hours and wages. Others have separate forms for exempt employees. One such form is commonly referred to as an “exception report.” This report indicates exempt employees’ normal working hours and is provided to such employees every pay period. If the employees have deviated from the indicated schedule, they are given the opportunity to make changes on the form to reflect the deviations. The form is signed whether changes were made or not.

Form or format

There is no specified form or format for FLSA records. In theory, an employee could verbally report hours worked, and the employer (or supervisor) could write down that number to document hours worked. However, employers generally require the employee to follow some procedure for recording hours, whether punching a clock, filling out a time sheet, using a computer program, or some other method. Such records may be stored on paper or electronically, as long as all required elements are available and retrievable.

Even when the duty to record hours worked has been placed on employees, the organization remains responsible (and potentially liable) for ensuring that records are complete and accurate. For example, an employee’s failure to turn in a timecard is not an excuse for failing to create the required record.

Similarly, that failure is not an excuse for failing to pay the employee for work performed. The regulations of the U.S. Department of Labor (DOL) Wage and Hour Division (WHD) state that if an employer “knows or has reason to believe” that an employee is working, the time must be counted as hours worked (785.11).

Recording hours worked

One reason for having employees fill out their own time sheets is to provide a statement that the record is a true and accurate reflection of hours actually worked. Where paper records are used, employees are often required to sign timecards. An actual signature may not be possible in electronic records, but employees can still be informed (and even reminded via a statement in the software) that by submitting the records, they are certifying the records are accurate.

These certifications can be useful if the employee falsifies a timecard, which can result in discipline. Reporting time that was not actually worked, and attempting to collect wages for that time, is commonly considered a form of theft.

Conversely, an employee who certifies the reported time is accurate may face a greater challenge in claiming back wages for unpaid hours. An employee who certified the records were accurate may have to offer a contrary story to claim unpaid time, which can harm the employee’s credibility, unless the employee can show, for example, that the company knowingly allowed or required submission of a false timecard.

Properly recording hours worked (and subsequently calculating wages, overtime, etc.) requires understanding which hours must be counted as working time. In short, employees are working whenever they are acting under the direction or control of the employer, or acting primarily in the interests of the employer. It is not necessary that they be engaged in specific job tasks at all times.

For instance, short rest periods or “coffee breaks” are counted as time worked. Similarly, employees who are engaged by the employer to wait for some event (such as delivery of materials) before starting their tasks must be paid for waiting because their time is controlled or required by the employer, and cannot be used for their own pursuits.

In some cases, the employee will need to make changes to recorded hours worked. If changes to an employee’s timecard become necessary, a best practice is to make the change conspicuously and to include the employee’s initials to verify the change. Ideally, the time will be accurately recorded, but mistakes sometimes happen, or an employee gets called to work after turning in a time sheet, and revisions may be necessary.

In other cases, employers will make changes to an employee’s recorded time, perhaps because of an error, or even because the employee falsified the timecard.

A best practice is to discuss the situation with the employee, explain the need or reason for the change, and have the employee initial the timecard or authorize the change. If the employee refuses to cooperate, as may happen in cases of suspected fraudulent time reporting, the employer can at least make a notation of the reason for the change and the fact that the employee was offered an opportunity to sign the change.