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Forced to Clock Out and Continue Working

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  • 12-17-2011, 09:20 AM
    mmaarrkkdavis
    Forced to Clock Out and Continue Working
    My question involves employment and labor law for the state of: Indiana
    My wife works in a nursing home and is being told to clock out after 40 hours and continue working. She has had 3 lunch breaks in 5 months. She works 50 to 55 hours per week and is only paid for fourty. Can her management be subject to criminal prosecution?
  • 12-17-2011, 09:24 AM
    davidmcbeth3
    Re: Forced to Clock Out and Continue Working
    Call up your state's DOL and file a complaint. She may be exempt but I don't know with not enough facts presented; your wife would need to post to gather needed information.
  • 12-17-2011, 10:07 AM
    cbg
    Re: Forced to Clock Out and Continue Working
    No, they will not be subject to criminal prosecution. Even assuming that your wife is non-exempt, this is civil law, not criminal law.

    IF your wife is exempt (not likely but possible) then nothing illegal is transpiring. Exempt employees are not paid on the basis of the hours they work; they are paid a salary that covers all hours worked, regardless of how many or how few. They are never, EVER due additional salary for extra hours work under the law. Clocking out before she is finished working would only be an issue if she were denied participation in an hours-based benefit such as FMLA or a 401k.

    If your wife is non-exempt, (likely but not definite) then there are laws being broken, but as I said above they are civil laws, not criminal laws. If this is the case, then the employer is responsible for keeping an accurate record of the hours worked, and she must be paid overtime for all hours in a week over 40. She should contact the state DOL for assistance in this case.

    In neither instance are lunch breaks an issue. Unless she is a member of a union that requires them (in which case her recourse is through the union, not through the law) lunch breaks are not required by either Federal or Indiana law regardless of how many hours she works.
  • 12-17-2011, 12:13 PM
    Legal Beagle
    Re: Forced to Clock Out and Continue Working
    If no one objects then this will continue. If all the employees are overworked and disgruntled because of this kind of treatment by the employer, it potentially puts the nursing home residents at risk. Not good!
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