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Can you dock employee for not clocking in or out
July 4,  2024
Can you dock employee for not clocking in or out
      Can I dock an employee doesn't clock in or clock out regularly?
            I referred this to K&K Employment Department.  Here’s the response.  BTW, keep in mind that the K&K Concierge Program now includes employment law issues.  You get a free half hour telephone consult when you sign up for the Concierge Program and a free 15 minutes telephone consult each month for employment law issues; all that in addition to the benefits offer in the Concierge Program.   Another new “policy” I am considering is that once you join the Concierge Program your participation rate will not increase; I am considering raising the price to participate in the Concierge Program, so lock your rate in now. 
            A non-exempt hourly employee failure to clock in or clock out does not authorize an employer to dock pay under Federal or New York State law, which, may sound unfair...   
           Under Federal law, the Fair Labor Standards Act  (29 U.S. Code §211(c), timekeeping is ultimately the employer's obligation (also see,  As a result, even when employees have failed to submit their properly completed timesheets, the employer must pay them for hours worked when their paycheck is due. Employers must keep track of their employees' working hours and pay them accordingly; therefore, a late timesheet is not a valid reason to withhold or delay their pay.
           Under New York State law, employers are not authorized to dock for failure to properly keep time.  Under New York State law an employer is authorized to make deductions only for select reasons, including (1) deductions made in accordance with any law; (2) deductions for the benefit of, the employee; (3) Deductions for the recovery of overpayments; and (4) deductions for the repayment of wage advances. See New York State Labor Law Section 195-2.1;
          Not being able to dock does not mean you have to keep the employee.  You can write the employee up for non-compliance; you can take the employee off the schedule; you can fire the employee (so long as the employee does not have job protected status for some other reason...).   There are a few different ways to skin the cat here.  Happy to talk through.
Jennifer Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
516 747 6700 x 302

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301