EMS Insider, Legal Consult

The Importance of Tracking Time

 
By Krista Cabrera and Jeremy Wooden
Under the federal Fair Labor Standards Act and comparable state laws, employees who do not legally qualify as exempt from federal and state overtime rules must be paid on an hourly basis and are entitled to overtime pay. While there are exceptions, and the question of an employee’s status as exempt or non-exempt depends upon the specific employee’s job duties and salary, many EMS providers employ large numbers of nonexempt employees. EMTs, for example, usually are classified as non-exempt given the nature of their duties. The hitch: Employers must keep track of hours worked by hourly, non-exempt employees. This simple rule is not always easy to follow when employees are out in the field, as is often the case in this industry. When the bulk of a company’s workforce performs duties in ambulances or at remote locations, it can be challenging to require employees to account for their time.

 

If all employees start and end their shifts at a set location with a time clock, then the employer should, in theory, have an accurate record of the length of each shift worked by a non-exempt employee. But EMT employees may work on-call, or start and finish shifts at fluid locations. In these scenarios, it is common for an employer to assign a schedule to an employee—for example, four 12-hour shifts per week—and simply assume the employee always works those hours. The employer then might pay the employee regular and overtime pay based on the assumed schedule each week, without requiring the employee to physically record his or her time. Or the employer might have the employee submit a time card listing the exact same number of hours worked every week, with no day-today variations. These practices often benefit the employee (who may leave early one day or come in late another without having any pay deducted), but there are potential consequences as well. If an employer is audited or involved in litigation related to overtime wages, the lack of records showing the exact hours worked by a non-exempt employee can create a presumption that the employee’s version of hours worked is the correct version. The employer then faces an uphill battle trying to prove the employee was in fact paid accurately.

 

The highly regulated nature of the EMS industry means that records of calls responded to by those out in the field are generally obtainable through a dispatch system, but no employer wants to go to the trouble of obtaining and analyzing dispatch records to prove it paid its employees properly. Thus, EMS providers are wise to institute methods for accurately tracking time. If having employees clock in and out at a specific physical work location is not possible—as with employees who begin and end shifts in the field—then a method as simple as a printed time card maintained by the employee and turned in every week or pay period works just as well.Tracking meal periods

 

The remaining issue is how to record meal breaks for employees out in the field. Several states require employers to provide non-exempt employees with off-the-clock meal breaks.1 Employers required to provide these breaks should maintain records showing that employees actually take the meal breaks so there is no question the breaks are being provided. Simply deducting time for meal breaks after-the-fact or having employees record their meal breaks at the end of a shift is less than ideal in terms of accuracy. Ideally, employees should have a way to record meal breaks in real time, either on a time card, by alerting dispatch, or by another method in which the actual length of the break is accurately recorded.

 

Preventive practices such as requiring employees to write down the start and end time of their shifts and breaks can prevent significant headaches in the long run.

 
 
 

NOTES

 

1. Currently, 19 states and two U.S. territories have meal break requirements. Specifics vary from state to state, with many states permitting waivers or on-duty meal periods, and in some states these requirements can be collectively bargained around. Thus, it is important to consult counsel or an HR specialist regarding the rules applicable to the states in which you do business.

 
 

Jeremy Wooden is an associate at Foley & Lardner LLP and is a member of the firm’s Labor & Employment, and Business Litigation & Dispute Resolution Practices. He regularly handles wage and hour matters under the federal Fair Labor Standards Act. Reach him at [email protected].

 

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