Occasionally I speak to people who have a potential overtime claim but they think that because there are no traditional time records it would be impossible for them to prove the hours they worked and therefore have no case. This is not so. As you will see, the employer bears the burden of keeping accurate time records and the employee will not be prejudiced because an employer did not fulfil their duty.
Usually these people have been working “off the clock”. Off the clock work can happen in small chunks like waiting 5 minutes every morning for the computer to boot up, or in larger amounts like being pressured to finish work at home.
Under the Fair Labor Standards Act(FLSA) employers have a responsibility to keep certain records for employees who are not exempt from the FLSA. These records include a record of “hours worked each workday and total hours worked each workweek”. 29 CFR 516.2.
Because the employer has a duty to keep records courts have decided that the lack of records should not prejudice the employee.
“[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.”
Anderson v. Mt. Clemens Pottery, 328 U.S. 680, 687-88 (1946).
This means that employees need only provide a rough approximation of the hours they worked in a given period. Hours can be proved in a number of ways. Testimony from the employee and co-workers or supervisors who witnessed the employee working, records of emails sent after work hours, security swipe card records, security camera footage, and phone records are some of the ways an employee can prove the hours that she worked off the clock.
If you have been working off the clock and there is no record of the hours you worked don’t despair. Talk to an employment law attorney in your jurisdiction. If you are in metro Atlanta please don’t hesitate to contact attorney Ben Kandy.