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State of New York |
Linda Angello, Director
M E M O R A N D U M
November 8, 2000
TO: Directors of Human Resources
FROM: John Currier, Executive Deputy Director
SUBJECT: 1999-2003 State/PEF Agreement
Article 12.17 - Maintenance of Time Records
and
Electronic Recognition Systems Side Letter
The 1999-2003 Agreement between the State of New York and the Public Employees
Federation contains the changes negotiated by the parties in Article 12.17,
Maintenance of Time Records. In addition, the parties entered into a new side
letter on Electronic Recognition Systems. The purpose of this memorandum is
to provide guidance and direction to agencies on the application and implementation
of these negotiated changes. If you have any questions or wish to discuss these
changes further, please contact Rebecca Caudle at (518) 473-8375.
ARTICLE 12.17 - MAINTENANCE OF TIME RECORDS
The text of Article 12.17, Maintenance of Time Records, was changed significantly and provides as follows:
No employee in this unit shall be required to punch a time clock or record attendance with a timekeeper. All employees in this unit shall be required to keep daily time records showing actual hours worked and shall maintain a daily record of absences and leave credits earned and used in accordance with the Attendance Rules on forms to be provided by the State, subject to review and approval by the supervisor.
The new language of the second sentence requires all employees in the Professional,
Scientific and Technical Services (PS&T) unit to keep a detailed record
of attendance showing actual hours worked and credits earned and charged. This
mandate applies to all overtime eligible and overtime ineligible employees in
the PS&T unit in all agencies.
Record of Attendance
The new language in Article 12.17 of the 1999-2003 Agreement requires that all
employees in the unit keep a daily time record showing actual hours worked.
The New York State Attendance and Leave Manual (Manual), Section 20.2, provides
that a time record showing actual hours worked must show the time an employee
begins work,
an employee's time of departure and return from meals, and time of departure
at the end of the work period, as well as any additional departures and returns.
Time that the employee is at the work site, but not at work, should not be included
as time worked. In addition, such a detailed record of attendance should contain
a daily record of absences and leave credits earned and used.
Under the previous contract language, overtime eligible employees in this unit were required to keep a daily time record showing actual hours worked as described above, whereas, overtime ineligible employees in this unit were required to keep a record of presence or absence. All employees in the unit were required to maintain a record of leave credits earned and used. See Manual, Section 20.2, including page C-1.
The provision contained in the Attendance Rules, Section 20.2, that permits agencies to petition the Department of Civil Service to exempt employees who do not earn overtime from keeping a detailed record of attendance is not available to employees in the PS&T unit since it is superceded by the newly negotiated contract language. The language of Article 12.17 in the prior Agreement automatically exempted overtime ineligible PS&T employees from keeping a detailed record of attendance, but this automatic exemption no longer is valid.
Form Used for and Certification of the Record of Attendance
Agencies must update the time record, including the certification statement,
for overtime ineligible employees to ensure compliance with the changes in Article
12.17.
The official time record is the only time record. It is not permissible to have any informal or unrecorded timekeeping arrangements.
Form Used for Record of Attendance
All employees in this unit shall be required to maintain a record of attendance
on forms provided by the State. The appointing authority controls the form used
for the record of attendance. Forms may be paper or electronic. An electronic
form on which an employee makes entries on a self-accounting basis in the same
manner that entries would be made on a paper time record is entirely permissible.
For example, an agency may have the time records of the agency computerized
and online. Please note that such an automated or computerized form is not an
electronic recognition system. (Electronic Recognition Systems are discussed
on pages 5 - 7 of this memo.)
It is permissible to use a two-part form as the official record of attendance. Such a two-part form exists when an agency requires employees to both 1) record times of arrivals and departures on a sign-in/sign-out sheet, and 2) complete a time record showing total hours worked each day, including a daily record of absences and leave credits earned and used. In such cases, these two documents together comprise the official record of attendance. Where a two-part record of attendance is used, overtime ineligible employees can now be required to record times of arrivals and departures on the sign-in and sign-out sheet.
Certification of Record of Attendance
It is important to remember that the time record is a legal document that provides
the basis for payment of salary and accrual of leave credits. The time record
must contain a certification statement attesting to the accuracy of the record,
which must be signed by the employee. The time record must also be certified
by the supervisor.
Determination of Hours Worked
The record of attendance must show actual hours worked. This includes all hours
worked beyond the basic workweek for both overtime eligible and overtime ineligible
employees. Since supervisors are required to certify the actual hours worked
by both overtime eligible and overtime ineligible employees, supervisors must
monitor the actual hours worked by these employees. Supervisors should ensure
that procedures and expectations with respect to additional hours of work have
been clearly communi-cated to employees. Supervisors must discuss with both
overtime eligible and ineligible employees how additional hours worked beyond
the employee's normal work schedule will be handled.
Time that the employee is at the work site, but not at work, should not be
included as time worked. For example, an employee who arrives at the work site
at 7:30 a.m., and drinks coffee and reads the paper until the scheduled beginning
of the work day at
8 a.m. would record 8 a.m. as the beginning of the work day. However, a scheduled
rest period as described in the Manual, Section 20.1, is paid time and not a
break in work hours to be noted on the time record.
Overtime Eligible Employees
The change in the language of Article 12.17 makes no change in any overtime
rules, regulations, or procedures with respect to authorizing and approving
overtime for overtime eligible employees.
Overtime Ineligible Employees
Overtime ineligible employees are expected to work the basic workweek and any
additional hours necessary to do their jobs, subject to supervisory approval.
They are not eligible for overtime pay or compensatory time, and they are not
entitled to a work schedule adjustment for any additional hours that such overtime
ineligible employees work beyond their basic workweek.
In order for the supervisor to certify additional hours worked for an overtime ineligible employee, the supervisor must be aware of the hours worked by the employee. Therefore, the supervisor may require that the employee obtain prior approval when the employee anticipates the need to work additional hours beyond the basic workweek.
Depending on the circumstances, the supervisor may approve all additional hours that are necessary to meet applicable deadlines, the supervisor may authorize additional hours up to a certain maximum number of hours, or the supervisor may direct the employee not to work any additional time. In some cases, supervisors may wish to restrict the additional hours worked to those hours that an employee works under their direct supervision. In addition to requiring advance approval, supervisors may rely on itineraries, visit reports, and/or a review of the work product to establish that the number of additional hours of work reported by the overtime ineligible employee is reasonable.
Based on the nature of the work of the overtime ineligible employee, procedures may need to be established to deal with situations where additional hours of work could not be anticipated in advance.
Fair Labor Standard Act (FLSA)
Basically, nothing has changed with respect to FLSA status for overtime ineligible
employees. The requirement that overtime ineligible employees must now keep
a record of actual hours worked showing arrival and departure does not make
them eligible for overtime under the FLSA.
Supervisory Review of Time Record and Timekeepers
The first sentence of Article 12.17 continues unchanged from the prior Agreement.
This sentence provides:
No employee in this unit shall be required to punch
a time clock or record attendance with a timekeeper.
The following language from the Manual, Section 20.2 at page C-1, is still controlling and applicable:
All employees covered by the contract item may be required to submit their time records on a daily, weekly, biweekly, or bi-pay period basis to their supervisors for their review and shall be required to maintain such records on forms prescribed by the appointing authority.
The appointing authority may require that time records be retained in a central location (e.g., a time card wall rack), except when removed for posting time and leave entries, or be placed in such central location for collection at the beginning or at the end of each workday so long as such retention or filing requirements do not involve the recording of arrival and departure times under the direct and immediate observation of a supervisor or other person acting as a timekeeper. The review at the close of each workday of daily time records to verify the accuracy of such records for one or more employees in a work unit does not constitute the recording of attendance ". . . with a timekeeper."
A supervisor may require employees in need of close supervisory control because of tardiness and/or attendance problems to sign in and sign out at his/her desk. A supervisor who imposes this requirement under such condition is not a timekeeper within the meaning and intent of the subject contract item.
Sign-in/Sign-out Sheets
Where an agency uses a two-part form as the official record of attendance, as
described on page 2 of this memo, overtime ineligible employees can now be required
to record times of arrivals and departures on the sign-in/sign-out sheet.
However, an overtime ineligible PS&T unit employee may not be required to record times of arrival and departure on a sign-in/sign-out sheet used to verify the accuracy of a separate official record of attendance.
All employees in this unit may be required to record times of arrival and departure on sign-in/sign-out sheets established for operational or programmatic purposes.
Tardiness
Overtime eligible employees remain subject to agency tardiness penalty schedules
whereas overtime ineligible employees are not subject to agency tardiness penalty
schedules. However, tardiness for overtime ineligible employees must be charged
to leave accruals. Both overtime eligible and overtime ineligible employees
are subject to appropriate counseling, penalties, and disciplinary action for
excessive tardiness. Redlining of sign-in/sign-out sheets may continue to be
used.
Family and Medical Leave Act (FMLA)
In order to be granted FMLA leave, the employee must have worked a minimum of
1250 hours during the 52 consecutive weeks immediately preceding the date the
FMLA leave is to begin. In determining whether this requirement has been met,
the agency must count all hours the employee actually worked. For employees
who are overtime ineligible, hours worked for which the employee was not compensated
count toward the 1250 hour requirement. (See Attendance and Leave Manual Policy
Bulletin No. 98-02, dated December 11, 1998.)
Implementation Date and Procedure
Agencies should complete implementation of the provisions of Article 12.17 no
later than the first day of the 19th payroll period, December 7 - December 20,
2000 for the administration payroll, and December 14 - 27, 2000 for the institution
payroll. If you cannot implement by this date, please notify GOER. All PS&T
unit employees should be advised of the date of implementation.
Please provide GOER with a copy of the information that you send to PS&T unit employees regarding the implementation date, along with a copy of the time record that will be used by PS&T unit employees. This information should be forwarded to Rebecca Caudle by December 29, 2000.
ELECTRONIC RECOGNITION SYSTEMS SIDE LETTER
The Electronic Recognition Systems Side Letter confirms the understandings and agreements of the parties with respect to electronic recognition systems. A copy of the side letter is attached to this memorandum.
Use of Electronic Recognition Systems
The side letter confirms that electronic recognition systems may be established
for operational and/or programmatic purposes including, but not limited to,
improving health and safety at State work locations. The parties agreed that
systems established for such operational and/or programmatic purposes do not
violate Article 12.17. However, data from such electronic recognition systems
will not be used for any time and attendance purposes.
The side letter confirms prior Arbitration decisions, which have ruled that
records of time created and used for operational and programmatic purposes do
not violate Article 12.17. Under these circumstances, their purpose and use
is not as records of time for time and attendance purposes. Examples of operational
and programmatic purposes that do not violate Article 12.17 include the following:
· time records kept by field employees to document the time it takes
to complete an inspection or audit;
· time records produced by a swipe card system instituted for safety
and/or security purposes;
· universal sign-in and sign-out procedures applicable to all employees
at certain locations or buildings, including but not limited to correctional
facilities, hospitals, residential centers; and/or
· records of time produced by a system used to evaluate staffing ratios.
The parties agreed that the data from electronic recognition systems created
for operational and programmatic purposes will not be used for any time and
attendance purpose. This would preclude use of the data to audit the entries
on an employee's time record. In addition, the data could not be used to determine
tardiness, as a tool to
monitor number of absences in a specified period, or in a time and attendance
disciplinary procedure. Data from electronic recognition systems may be used
for
non-time and attendance purposes, such as evidence in security determinations,
programmatic issues, and other non-time and attendance disciplines or concerns.
Examples of Electronic Recognition Systems
Electronic recognition systems include systems that use passwords, tokens and/or
biometrics to identify, verify and/or monitor an employee. Examples of tokens
are smart cards, swipe cards, badges with electronic chips and magnetic stripe
cards. Biometrics are automated methods of recognizing a person using the person's
fingerprint, signature, iris, retina, hand, and/or speech. The most common type
of electronic recognition system used by State agencies at the present time
is the swipe card. The swipe card has a magnetic strip imprinted with certain
identifying information. The swipe card is typically used for safety and security
purposes to control access to parking garages, buildings, and/or specific floors
and/or sections of buildings.
Prior Local Agreements Are No Longer Valid
In the past, PEF has suggested that electronic recognition systems by their
very nature violate Article 12.17 because they electronically record and store
time data as part of their basic operation. Specifically, PEF claimed that such
systems violated the first sentence of Article 12.17, which precludes the State
from requiring that PS&T unit employees record time with a timekeeper or
use a time clock. As a result, PEF often tried to preclude implementation of
electronic recognition systems. In some instances, PEF sought agency or local
level labor/management agreements on the use of data produced by such systems.
Please be advised that the terms of the Electronic Recognition Side Letter now govern with respect to electronic recognition systems used with PS&T unit employees and supercede any prior local arrangement or agreement.
Future Use of Electronic Recognition Systems
It is anticipated that use of Electronic Recognition Systems related to maintenance
of time records will be addressed in the Executive Labor/Management Committee
during the term of the Agreement. If you have concerns or suggestions regarding
this issue, please contact Rebecca Caudle at (518) 473-8375.
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