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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 19942
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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I have an employee who has submitted a complaint to the

Customer Question

Hi I have an employee who has submitted a complaint to the Better Business Bureau. He was paid today for hours clocked in for over the last period. He did not clock in one day so was missing 6 hours of pay on his check. We told him we would submit in next
pay check - though all employees are aware they must clock in and out each shift so we have a record. Does he have a legitimate complaint? We keep records of everything but not sure what the BBB would do. Thanks
Submitted: 1 year ago.
Category: Employment Law
Expert:  Marsha411JD replied 1 year ago.

Hello,

Thank you for the information and your question. Although the BBB is not the appropriate organization for an employee to complain about wage issues to, the employee may have a legitimate wage claim (that he should have submitted to the State or the Wage and Hour Division of the U.S. DOL) if his hours worked were known by you, the employer, when wages were paid today. In other words, the FLSA requires that an employer pay an employee for all hours worked that are not at controversy (meaning the employer has a way to know they worked them whether they clocked in or not.)

The recourse for an employer in the case where employees are not clocking in as required can include discipline in the form of suspension or even termination, but not withholding pay. So, although the BBB has no authority or power here, the employee should have been paid if you (or his supervisor) actually knew he worked that day.

Please feel free to ask for clarification.

Customer: replied 1 year ago.
we are covered if we have confirmed that these hours will go onto the next pay check? The original pay checks have already been given so we would have to add it on to the next pay period. Also how many warnings would we be required to give before suspension or termination is in order as not clicking in/out has happened several times with this employee.
Expert:  Marsha411JD replied 1 year ago.

Well, not really. The violation occurred when he was paid today, again assuming someone knew he worked those hours. If that is the case, he would still have a legitimate complaint to file with the DOL. If they found that you had not paid him on purpose, they could fine you. His other option would be to file suit and ask the court to award him double what he is owed if they find your non-payment (knowing he worked) was intentional. So, paying him next pay check doesn't unring the bell for a violation of the FLSA. It will keep you from getting into more trouble, but if there is anyway to issue him payment now for that one day, you might consider it since he seems to be extremely unhappy with the situation and my figure out how to actually file a wage claim.

As for warnings, none are required. Florida is an employment "at will" state, so employees can be disciplined, including terminated for any, or no, reason ans with no notice or warning unless doing so violates a contract, is motivated by discrimination, or is retaliation for an employee asserting their employment rights. So, you can't fire him for filing a wage complaint, but if he doesn't use the time clock, you can let him go for that.

Customer: replied 1 year ago.
Ok - we have just issued him a check for the remaining hours today so since we have corrected the dispute immediately we won't be found liable? Also if we let him go would we have to state the reason due to not clocking in/out in case he links it to his filing a complaint with the BBB and claim 'unfair dismissal?'
Expert:  Marsha411JD replied 1 year ago.

If he is paid today, then there is no violation of the law. At this point, you are borrowing trouble by terminating him today since he did file a complaint about his pay. That doesn't mean you can't, but you might have to defend an allegation of retaliation. Might be better to wait until he does this again, or at least some time later so it doesn't look like retaliation.

Customer: replied 1 year ago.
Thank you for your responses. Is there a termination format (i.e. - formal letter of dismissal) that we have to write if we look at this possibility at a later date?
Expert:  Marsha411JD replied 1 year ago.

Sorry I missed your post last night but I had logged off by the time you posted. Florida law does not require that any written, or oral for that matter, reason be given to an employee when they are terminated. However, if you terminate someone for cause, versus just telling them it didn't work out, you might want to give them a written reason. I say that only if you plan on disputing their eligibility for UI benefits based on "cause." If you do want to dispute, then always better to be able to shoe the state you told them specifically why they were let go and that it was cause related. Of course, you would also have to prove (testify) to what they did that supported cause, but the letter makes it so they can't say you didn't tell them when you let them go that it was for "cause" versus without cause.

Expert:  Marsha411JD replied 1 year ago.
Hello again,
I wanted to touch base with you and make sure that you did not have any further follow up questions for me from the answers I provided to you on the 14th and 15th. For some unknown reason, the Experts are not always getting replies or ratings (in the pop up box for this question, which is how we get credit (paid) for our work) that the customer thinks have gone through. If you are having technical difficulties with reading, replying, or rating, please let me know so that I can inform the Site administrator.
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Thank you.