Author: Clint Scott

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Overtime/Wage & Hour

Record Keeping Under the FLSA – Employer’s Burden

“Off the clock” cases make up a large percentage of FLSA claims.  When an employee that has been the victim of wage theft comes to me, he or she often is concerned that they do not have records of exactly when (date and time) they worked “off the clock.”  Fortunately, the Defendant is required to keep detailed time and payroll records of all non-exempt employees, rather than the employee.  29 C.F.R. 516.2. These records must include when the employee’s workweek begins under the FLSA.  29 C.F.R. 516.2(5).  The records must also include “hours worked each workday and total hours worked each workweek”  and must be maintained for at least three years.  29 C.F.R. 516.2(7), 5(a).

Addressing this issue, the Sixth Circuit in Fegley v. Higgins, 19 F.3d 1126, explained the consequences of an employer’s failure to keep proper records of hours worked by an employee in light of the FLSA.  In Fegley, the Court granted the plaintiff’s motion for partial summary judgment on the issue of liability for an FLSA overtime violation.  The Sixth Circuit, citing the seminal case from the U.S. Supreme Court, went on to explain:

[W]here the employer’s records [of work hours] are inaccurate or inadequate and the    employee cannot offer convincing substitutes …. we hold that an employee has carried out his burden if he proves he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.

Id. at 1133 (quoting Anderson v. Mt. Clemens Pottery, 328 U.S. 680, 687-88, 66 S.Ct. 1187, 1192 (1946)).

As such, employees in “off the clock” cases need only be able to give a reasonable approximation of their “off the clock” work.

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Uncategorized

Employer Retaliation for Wage & Hour Claims

My partner, Michael Russell, posted last week on the Penn State debacle and the question of why employees don’t always report illegal conduct.  I agree with him that the answer is often that people are scared of losing their job and finding themselves in the unemployment line, or more likely fighting for unemployment benefits.  To be honest, who can blame them.  In this economy and with the need to provide for their families, employees are often put in the no win situation of reporting what they know is wrong versus keeping quiet and protecting themselves.

This same issue often arises in my wage and hour practice where employees are the subject of illegal wage and hour practices that are depriving them of wages guaranteed by the Fair Labor Standards Act (“FLSA”), whether minimum wage or overtime.  While a majority of my clients no longer work for the offending employer when they come to me, I inevitably have some that are still employed and find themselves unable to continue to tolerate the illegal activiity, such as not being paid for overtime, being worked “off the clock,” or being misclassefied, as just a couple of examples.  These individuals are almost always fearful of what their employer might do if they bring a federal lawsuit to correct the illegal payment practice.  They often ask, “do you think I will get fired if I file this lawsuit?”

In response, I tell them I don’t know and can’t know how a particular employer will respond to a lawsuit.  Some employers have highly competent counsel, who certainly advise against any sort of retaliatory conduct.  In these cases, the filing of the lawsuit may work to protect the employee’s employment status.  On the other hand, some employers will retaliate by trumping up bogus grounds and disregrding the advice of their attorneys.

What I do know, however, is that Congress realized that this would be an issue when it enacted the FLSA.  The FLSA contains an anti-retaliation provision, 29 U.S.C. § 215(a)(3), which makes it unlawful for any person . . . to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA] or has testified or is about to testify in any such proceedings, or has served or is about to serve on an industry committee.

Because of this anti-retaliation provision, I am able to tell potential clients that any such retaliation is illegal and will certainly be the subject of a motion to amend complaint to add a retaliation claim.  While this doesn’t protect against the unemployment line while litigation proceeds, it does give my clients some peace of mind that there is a remedy available to them for any retaliatory conduct.  Each client then has to make the decision of whether this is enough peace of mind and/or the illegal payment practice is severe enough in order to warrant the possibility of the unemployment line.  Of course, this is a decision that they must each make on their own or as a family.

Categories
Overtime/Wage & Hour

Time Records in “Off the Clock” Cases

When I meet with a worker who has been worked “off the clock” by his employer, he or she will inevitably make the following statement:

“. . . but I don’t have any records of the “off the clock” work I performed?”

This is a common concern among individuals that have been worked “off the clock” by their employers because they generally have not documented their time spent working “off the clock.”  Fear not, the Fair Labor Standards Act and the case law interpreting it protect employees put in this no win situation.

Employers are required to keep detailed records of all non-exempt employees.  These records must include when the employee’s workweek begins under the FLSA.  The records must also include “hours worked each workday and total hours worked each workweek” and must be maintained for three years.  If Defendant’s records are inaccurate, the employee may give a just and reasonable approximation of his/her damages.

In Fegley, the Sixth Circuit explained the consequences of an employer’s failure to keep proper records of hours worked by an employee in light of the FLSA.  The Sixth Court granted the plaintiff’s motion for partial summary judgment on the issue of liability for an FLSA overtime violation, citing the seminal case from the U.S. Supreme Court and explaining as follows:

[W]here the employer’s records [of work hours] are inaccurate or inadequate and the    employee cannot offer convincing substitutes …. we hold that an employee has carried out his burden if he proves he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.

Id. at 1133 (quoting Anderson v. Mt. Clemens Pottery, 328 U.S. 680, 687-88, 66 S.Ct. 1187, 1192 (1946)).

A recent case that we tried before the Honorable Judge J. Daniel Breen of the United States District Court for the Western District of Tennessee illustrates this issue.  See Barnes v. Tennessee Personal Assistance, Inc., Docket No. 10-1260 (W.D. Tenn. June 18, 2012) (Memorandum Opinion).  In this case, we were able to obtain summary judgment on the issue of liability, convincing the Court as a matter of law that Ms. Barnes had been misclassified as a salary non-exempt employee.  After waiving the jury, the parties tried the issue of damages to Judge Breen.

At trial, Defendant had no records of the hours worked by Plaintiff.  As such, Defendant was unable to produce any payroll records on the issue of how much time Plaintiff worked.  Plaintiff, on the other hand, produced a calendar on which she had recorded some, but not all of her hours worked.  Thus, the Court was left to determine the damages owed to Ms. Barnes based on her calendar and the testimony of witnesses.

Because Defendant was unable to meet its burden, the Court found that Ms. Barnes was able to prove that she had worked approximately 841 hours of overtime.  The Court noted that Defendant “had no documentation to prove Barnes’ estimate of her overtime was inaccurate, except to state that she would have known if the Plaintiff were working that much.  [Defendant] acknowledged, however, that she did not monitor employees’ work hours.”

Thus, Ms. Barnes reasonable approximation of her overtime hours prevailed, demonstrating that employees don’t have to have records of when they worked “off the clock.”  Rather, they are only required to provide evidence supporting a reasonable approximation of their overtime worked, which serves to protect employees forced to work “off the clock” by their employers.