Islip, NY asked in Employment Law for New York

Q: I am an exempt salaried employee in NY and have a question about timecards and hours

My company handbook states only non exempt employees have to fill out a time card. The company has now been making exempt employees do so as well, though no revisions have been made to the handbook. They expect us to punch in, lunches, and out for the day. They have also introduced an "early friday" plan, where we can leave early on Friday but only if we make up the hours during the week. They also insist we work an 8 1/2 hour day, to make up for lunch, even if no lunch is taken (voluntarily waived by employee). They also want us to use PTO, if we only work a partial day. They seem to be trying to treat exempt employees as non-exempt. Is all of this legal? They are an at will employer. They have a PTO plan.

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1 Lawyer Answer
V. Jonas Urba
V. Jonas Urba
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Answered
  • New York, NY
  • Licensed in New York

A: Company handbooks are almost never contracts. I don't recall one which was enforced as a contract. They usually state so in the printed document itself. Handbooks are usually subject to change with or without notice as long as the employer applies the changes to everyone.

More employers are likely to require all employees to keep track of their time. With remote workers, telecommuting, work-sharing, and other arrangements time-keeping is probably a wise choice for everyone. Remember that if your employer misclassified an exempt employee who should have been non-exempt, the time records might be the only way to show how many hours an improperly classified exempt employee actually worked.

I understand that being exempt often feels better. Exempt employees feel more important. The downside is that exempts are paid the same salaries regardless of how many or how few hours they work. An exempt McDonalds employee might work 80 or more hours per week and if they are actually exempt, no overtime pay.

If I had my choice I would probably choose non-exempt because when you clock out you have no obligation or duty to work unless you get paid for that work after hours.

Exempt employees are rarely unionized. And unions were historically what protected a non-exempt employee's job.

But if you join a union make sure to participate within it. Don't rely on the local president for protection. A few days ago I reviewed a union agreement amendment where the local union president gave an employer carte blanche authority to do almost anything with its work force and staffing. Understaffing was almost impossible. The injured or older laborers might not be able to keep up and their jobs probably have little if any security. But few read or understand what their local union president signed them up for a few years ago.

Union membership might be a good idea. But make sure to participate in the union and read the collective bargaining agreement language very carefully.

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