Elizabeth, NJ asked in Employment Law for New York

Q: Can my employer legally create a policy that docks my pay based on activity percentages in a tracking app?

As per my offer letter, I am non-exempt salaried employee in the state of NY. My employer has me using this app called “Hubstaff” since we’ve been working from home during the pandemic, which tracks clicks and mouse movements and reports an “activity percentage” based on those actions. Today I got an email with an announcement stating that if “my activity level is below 60%” the company “reserves the right to deduct my salary”. It would be frequent and to the employers benefit. They are not changing my salary, only making deductions when they want. I wear a number of hats for this company, mostly a mix of business development, operational, and managerial duties. I also feel like I should be an exempt employee, but I’m not sure of the law. The 60% number my company came up with is impossible for the type of work I do. As I understand it, this is illegal. I’ve done some research where I understand I can’t be paid based on the quantity/quality of my work and according to my offer letter.

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1 Lawyer Answer
Kyle Anderson
Kyle Anderson

A: Typically, deductions from pay are permissible when an exempt employee is absent from work for one or more full days. That does not sound like the case here. If your employer follows through with the deductions and they occur more than a few times, I would reach out to an employment law attorney in your state to determine your options.

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