Deductions from wages

I am being forced to work off the clock. What should I do?

In general, an employee’s “hours worked” include all time an employee must be on duty, or on the employer's premises or at any other prescribed place of work. All employees must be paid for all time worked. So if your employer is forcing you to work off the clock, you may be entitled to additional compensation (even if you are paid a salary).

Common examples of work off the clock:

  • Your employer asks to you set up, open a store or facility prior to clocking in.
  • Your employer makes you clock out for a meal break, but nonetheless makes you work during that period.
  • Your employer automatically deducts some period of time from your hours (usually for an assumed “break”), but does not compensate you for work you performed during that time.
  • Your employer asks you to clock out and then, after you are clocked out, perform additional work (e.g. cleaning up, shutting down, etc.).

Am I entitled to additional compensation:

Probably. This comes down to a determination of whether an employee is exempt or non-exempt. For further information that should help you determine whether or not you are exempt, these links may be helpful:

What to do if you are being forced to work off the clock:

  • Collect the facts – you need to get a sense of how much you are working off the clock, whether any additional employees are also working off the clock. Get any documents you have about off the clock work together.
  • Contact an employment lawyer – get a better understanding of your rights. We offer a free initial consultation. In most situations involving work off the clock we do not collect a fee unless we get recovery for our client.  Contact us today for a free consultation.

NY Labor Law Legislation Update

On September 7, 2012, Governor Cuomo signed legislation amending New York Labor Law §193.   The amendment goes into effect on November 6, 2012. Section 193 of the New York Labor Law prohibits employers from making “any deduction from the wages of an employee,” except for (1) deductions required by law or (2) deductions that are expressly authorized by the employee in writing and “are for the benefit of the employee.”  The second exception permits deductions for insurance premiums, pension or health benefits, charitable contributions, and dues for labor organizations, as well as other limited deductions.

The amendment expands the list of categories for which deductions may be taken by employers with an employee’s written consent and allows deductions for overpayments due to clerical or mathematical errors or for repayment of advances on wages or vacations paid to employees.

The permissible deductions under the amendment shall now include the following:

●             prepaid legal plans;

●             purchases made at events sponsored by a charitable organization affiliated with the employer;

●             discounted parking or discounted passes, tokens, fare cards, vouchers, or other items that entitle the employee to use mass transit;

●             fitness center, health club, and/or gym membership dues;

●             cafeteria and vending machine purchases made at the employer’s place of business, and purchases made at gift shops operated by the employer (if the employer is a  hospital, college, or university);

●             pharmacy purchases made at the employer’s place of business;

●             tuition, room, board, and fees for pre-school, nursery, primary, secondary, and/or post-secondary educational institutions;

●             day care, before-school and after-school care expenses;

●             payments for housing provided at no more than market rates by non-profit hospitals or affiliates thereof; and

●             similar payments for the benefit of the employee.

Most significantly, the amendment allows employers to make wage deductions to recover “an overpayment of wages where such overpayment is due to a mathematical or other clerical error by the employer” and “repayment of advances of salary or wages made by the employer to the employee.”

Under the amended law, deductions still are permitted only if expressly authorized in writing, signed by the employee and if the deductions are, generally, for the benefit of the employee.  The amendment requires that, before any deduction is made, the employee must receive “written notice of all terms and conditions of the payment and/or its benefits and the details of the manner in which deductions will be made.”