What happens if you want to bring a case for your unpaid overtime but you are unsure of how many hours you may have worked? Under the Fair Labor Standards Act (“FLSA”), employers are required to keep certain records for each non-exempt worker, which details certain identifying information about the employee including the hours worked and wages earned. “It is the employer who has the duty under section § 11(c) of the Act to keep proper records of wages, hours and other conditions and practices of employment and who is in position to know and to produce the most probative facts concerning the nature and amount of work performed.” Kirk v. Invesco, Limited, No. 16-20601 (5th Cir. 2017).
The FLSA requires the workers to be paid time and a half their regular rate of pay for all hours worked over forty. The employer is required to preserve payroll records for at least three years and retain wage computation records for at least two years. In order to know how many hours someone worked, employers need to keep timekeeping records in whatever format they desire. The purpose of the records is to show how much the workers were being paid and how many hours the worker worked. If the worker wanted to bring a claim for unpaid overtime, the timekeeping and wage computation records should paint a good picture of how many overtime hours the worker is entitled to.
What happens if the employer does not maintain timekeeping records? Under the FLSA, a two year statute of limitations is imposed to bring claims; however, this time period is extended three years for willful violations of the FLSA. “To prove a willful violation, the plaintiff has to establish that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). Thus, if it can be shown that the employer knew of the FLSA’s existence and disregarded it, a three year statute of limitations will apply. “When an employer whose employee works over 90 hours per week chooses neither to keep records of their employee’s time nor acknowledge their employee’s presence for those extended hours, that employer can easily be said to have disregarded the possibility of violating the FLSA.” Ramos v. Al-Bataineh, 599 Fed. Appx. 548 (5th Cir. 2015). Thus, if there are no records form the employer, the employee is entitled to estimate how many hours he would have worked during the time period he claims to seek overtime pay. Specifically, “where the employer’s records are inaccurate or inadequate and the employee cannot offer convincing substitutes a more difficult problem arises. The solution, however, is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. In such a situation the court in Kirk held that an employee has carried out his burden if he proves that 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.” Kirk v. Invesco, Limited, No. 16-20601 (5th Cir. 2017).
If you think you have been denied overtime pay and want to see if you hav a claim for unpaid overtime, consider speaking with an attorney today. Josh Borsellino is a FLSA attorney that understands its rules and regulations. He offers free consultations and be can reached at 817.908.9861 or 432.242.7118.
