“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.