On or Off the Clock??

28 April 2019

 

Commissioner Roberta Reardon

Division of Labor Standards – Main Office

State Campus Building 12

Albany, NY  12240

 

Dear Madam Commissioner:

 

Before filling out form LS 223 and asking many others to do the same, I wanted to know if I were wasting your time.  Therefore, after reading this if you feel an infraction is not present, I will inform other interested parties that completing an LS 223 based on these facts is not necessary.

 

I was employed by Dick’s Sporting Goods at their Sangertown Mall location in New Hartford, NY from 4 January 2018 until 29 March 2019.  I left of my own accord without any negative entries in my employee file. If I do not have “standing” because I left the company, please let me know and I will ask a current employee to file a similar letter.

 

Under the Fair Labor Standards Act, 29 U.S.C. ss 203, work “off the clock” is prohibited.  While Dick’s does not force employees to work off the clock, it forces them to be delayed throughout the work day while off the clock.  I believe this is the same thing.

 

If you arrive before your Dick’s location opens, you are not allowed to simply proceed into the store to punch in.  Rather, you must take advantage of the store’s PA system via the telephone in the vestibule paging, “Manager to the front please”.  Fellow employees could be engaging in tasks immediately adjacent to the door but they cannot let you in. You could be there 4-12 minutes.  This means that you could arrive on time and end up punching in late. It also means that you are not being paid while you wait. The reason Dick’s gives for this routine is “employee theft prevention”.  Apparently, you can bring things into the store for the purpose of stealing other things. An observant manager is tasked with seeing said theft tools as you walk in.

At lunch, if you remain in the store, nothing happens.  If you decide to leave the store for lunch, a reverse process ensues.  You must walk up to an available cashier – since one would think you took your headset off.  Then you make a request of the cashier to ask a manager to come “check you out”. This process, because Managers are running around being Managers, can take up to 10 minutes.  Twenty minutes during Christmas time is not unheard of. I would know.

 

This process reemerges one more time.  At approximately 21:35, if the store closes at 21:30 (19:05 if the store closes at 19:00 on a Sunday), you are told to bring your headsets, scanners, and printers to the back.  Then you punch out. However, you are not allowed to leave. Everyone gathers again at the vestibule door you came in through.

 

At night, you must be fully “checked out” which includes a full “pantomime” pat down of your coat which must be off and handed to the manager.  The reason given is again “employee theft”. You are told the regional head of security named Mike is watching all the cameras in all the stores in the region.  Mike is an honorable man but I’m guessing things get weird in his house when he has to tell his kids around 21:30, “Ok kids, go talk to mommy for a little bit, daddy has to watch all the coat pat downs on his computer”.

 

If you work more than a 6 hour day, that become a cumulative 30-40 minutes per shift waiting off the clock.  In a 4 shift week, that’s over an hour off the clock. Over the course of the year, that’s almost two full weekly paychecks spent doing nothing but waiting.  Even the most part time of part time employees is looking at 15 minutes per week and the rest can be extrapolated.

 

Some may argue, “Well, it’s a few minutes off the clock here or there, what’s the big deal??”

 

To those, I would ask them to consider the following scenario: Friday comes and the bi-weekly checks get deposited.  Everyone notices the checks are 25% short. When management is asked why the shortage has happened they say,”Well, we’ve had this employee theft problem in the past so as a proactive measure, we’re going to take one half of one week’s paycheck every year to fix it.”  Such a fix would not be tolerated by law and should not be tolerated here.

 

Madam Commissioner, if I ask every current and former Dick’s employee I know to fill out form LS 233 and this is already somehow decided under statute or case law in favor of the company, I would feel horrible.  Your staff deserves much much better than that. Therefore, I present this to you today hoping you can make a suggestion. If you decide to stay silent, I will interpret that as a signal everyone should go ahead and file.

 

Thank you for your time and consideration.

 

Sincerely,

 

Robert T. Oliveira

2 Kennedy Plaza, Unit 1205

Utica, NY 13502

315-864-1229

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