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.