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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 19768
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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We have not historically required our hourly employees to

Customer Question

We have not historically required our hourly employees to clock out/in for their 30 min lunch period as the timekeeping system deducts the 30 min automatically. We only have the employee clock out during the work day if they are leaving for an outside appt. and then they clock back in when/if they return within that work day. Do you see this as an inconsistency that could leave us liable for a WC claim if something would happen to them off premise during the lunch period?
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: Indiana
JA: Is the employment agreement "at will," union, full time or part time?
Customer: We are an "at will" State.
JA: Anything else you want the lawyer to know before I connect you?
Customer: No
Submitted: 3 months ago.
Category: Employment Law
Expert:  Marsha411JD replied 3 months ago.

Hello,

Thank you for the information and your question. From a WC perspective, whether an employee is on or off of the clock is not necessarily the determinative factor in whether they have a WC claim or not. In other words, an employee can be off the clock and still be injured on the property controlled by the employer. If they are, then the injury is covered as a WC workplace injury. So, although clocking in and out of work for the lunch period is one piece of the puzzle, it isn't the entire puzzle. It is usually a good idea to have an employee clock out for any time that they are not going to be compensated for. This is important, not just from a WC perspective, but also from a wage law perspective. If you want to read a good discussion of WC on versus off the clock issues, you can find one here: http://www.injuryclaimcoach.com/work-place-accidents.html#

Under wage laws, an employer is supposed to keep records of the hours worked by the employee. An automatic deduction of 30 minutes doesn't necessarily meet that requirement. There would have to be independent evidence that the employee actually took that 30 minutes for a lunch with absolutely no job duties performed. Otherwise, there are wage law issues with that scenario.

But, with the WC time clock issue, as long as the employer has someone who can testify that the employee took their lunch on that particular day, that would counterbalance no actually clocking out. However, it is not the most effective way to account for the employees time and to produce evidence should it be required either by WC carrier or the labor department in the case of a wage claim.

Please feel free to ask for clarification if needed. If none is needed, the if you could take a moment to leave a positive rating in the ratings box above, I will receive credit for assisting you today. Thank you.

Expert:  Marsha411JD replied 3 months ago.

I see that you have read my response and have asked he question again in a different question thread. Do you have questions about my detailed answer? If so, you can, as mentioned, ask follow up questions to me rather than asking your same question again.

Expert:  Marsha411JD replied 3 months ago.

Hello again,

I wanted to touch base with you and make sure that you did not have any follow up questions for me from the answer I provided to you on the the 31st. For some reason, the Experts are not always getting replies or ratings (at the top of the question/answer page you are viewing or in the pop up box for this question), which is how we get credit(paid by the Site) for our work, that the customer thinks have gone through. In your case I received neither.

Please keep in mind that I cannot control the law or your circumstances, and am ethically bound to provide you with accurate information based on the facts you give me even if the news is not good. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the Site administrator.Please note that Site use works best while using a computer and using either Google Chrome or Firefox.

In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue, if needed. You can bookmark my page at: http://www.justanswer.com/law/expert-marsha411jd/

Thank you.

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