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Business Q&A: Mismanaged attendance software can lead to liability

Oklahoma City attorney Brian Burget, of McAfee & Taft, addresses concerns with “auto-deduct” software for recording employees' time and attendance.
by Paula Burkes Published: December 28, 2012

Fortunately for employers, courts are beginning to restrict employees' ability to file collective actions. For example, the U.S. 6th Circuit Court of Appeals recently affirmed a district court's decision to “decertify” a collective action filed under the FLSA. The lawsuit involved a step-down nurse who challenged the employer's auto-deduction policies. Following his termination, the nurse alleged that his prior employer had violated the FLSA by failing to properly compensate him and other similarly situated employees for time worked during breaks. According to the nurse, his prior employer had failed to pay for missed and interrupted meal breaks at all three of its facilities.

The 6th Circuit found that the nurse could not maintain a collective action because he failed to present substantial evidence that any other would-be or opt-in plaintiffs were similarly situated. While this is good news for employers, it doesn't completely eliminate an employee's ability to prevail in an auto-deduct collective action filed under the FLSA. An employee may still pursue a collective action if the employee can show that other employees are “similarly situated.” This is often determined by examining whether or not there are similarities in job duties, pay, employment settings and individual violations among the collective employee plaintiffs.

Q: For employers that have auto-deduct policies in place, what are some best practices for ensuring they don't violate the Fair Labor Standards Act?

A: Employers utilizing auto-deduct programs should scrutinize their policies to ensure that all time worked by employees during breaks is compensated, and employees remain fully trained to use any system in place to override the automatic deductions. Employers should consistently instruct employees on any policies that deal directly or indirectly with their obligation to report time worked during breaks. In addition, employers should document and maintain good records of this training in each employee's personnel file.


by Paula Burkes
A 1981 journalism graduate of Oklahoma State University, Paula Burkes has more than 30 years experience writing and editing award-winning material for newspapers and healthcare, educational and telecommunications institutions in Tulsa, Oklahoma...
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