Wage and Hour Laws - Shaving Time

The woman who appeared in my office late last year, was tallish, pale and rather mousy.  The word “assertive” does not come to mind when I bring up her image.  She was a new client, and her problem was that her manager was deleting time from her timecards.

“Sally” worked as a cashier in a convenience store.  The store was  part of a national chain.  Sally was earning just a little over minimum wage.  Even without time deleted from her pay she could not afford health insurance. 

She determined that the manager was deleting time by  keeping her own records after receiving a check that was suspiciously short.  The first question that Sally asked me was, “Can my manager fire me if I make a claim for unpaid wages?”

As an employment lawyer, I represent mostly lower and middle income employees and a few small businesses.  The practice that Sally complained about is often called “shaving time.” Over the course of nearly twenty years in practice, I have encountered this practice on a fairly regular basis. 

Shaving time has become enough of a problem that the news media has given it attention as the number of suits to collect wages that have gone unpaid due to this illegal practice has grown.

Lawsuits will not eliminate the problem. They haven’t so far.  They are not enough of a deterrent, given the scale of the problem and its legal framework.  The Department of Labor and corresponding state agencies barely address the problem.

Non-union and non-government employees (including managers) can be fired at any time, for any reason or no reason at all, without any notice.  Most people know that they are employed at-will but may not understand that it means that they can be fired for a  false reason, an unfair reason, or a whim.
 
Managers shave time because they are afraid of being fired.  They cultivate job security by reducing labor costs in the hope that this will please store owners. Doctoring time cards, punching workers out early, making “corrections” to time records are a few ways to do it.  Shaving computerized time records can be done with the click of a mouse.  Proving that managers are shaving time can be hard, because the business usually controls all the time records.

Most workers know when their time is being shaved.  It can have big impact on low wage earners, because the practice is usually aimed at reducing overtime.  The problem for these workers is the question that Sally brought up - could she be fired for making a claim for unpaid wages?

Here’s what I had to tell her.  While it would be illegal to fire her for trying to collect unpaid wages, the manager could  fire her for any other  reason.  If a worker becomes troublesome in any respect, they may easily be fired.

Likewise, it would be illegal for the store owner to fire the manager because he refused to shave his employees’ time.  In most states that would be a wrongful discharge.  A discharge that occurs because the worker refused to break the law is a discharge in breach of public policy and therefore “wrongful”.  The problem is that the manager could be let go for any other reason not prohibited by law.  There are few exceptions to the at-will rule.

In an economy where there are more workers than available jobs, fear of job loss can stop the worker from trying to vindicate important rights.  It’s as if these rights are trumped by the at-will rule.

One way to stop the practice of shaving time would be to eliminate this fear by ending the at-will rule.  Give every worker the right to termination only for just cause with the decision to terminate subject to review by an arbitrator.  I have never seen the practice of shaving time where workers are covered by a collective bargaining agreement under which they can only be terminated for cause.

This is not a new or radical idea.  It’s close to what the Model Employment Termination Act (META), as recommended by the National Conference of Commissioners on Uniform State Laws, would accomplish.  The META has been around since 1991.  Yet only Montana has a version of it.  Business interests have helped to defeat it in every other state legislature in which it has been introduced.  It can be reintroduced or placed before voters as a referendum measure.  It would have helped Sally whose fear of being fired stopped her from trying to collect the pay that she was due.

Glenn Solomon is an employment lawyer in Portland, Oregon and the author of the recently published, You Could be Fired for Reading this Book (Berrett-Koehler, April 2004).