One of the most difficult
things to do is prove a negative. Yet, this is exactly the problem that
employers face when defending wage and hour cases in which the employee alleges
work performed off-the-clock. The employer says that the time clock defines the
paid limits of the workday, while the employee says that s/he should be
compensated for work performed outside the parameters of those clock-ins and
clock-outs.
In Moran v. Al Basit LLC (6/1/15) [pdf], the 6th
Circuit was faced with a simple question—does an employee need something other
than his or her own testimony to establish an entitlement to unpaid
compensation under the FLSA?
Sadly, the 6th Circuit ruled in the employee’s favor.
Plaintiff’s testimony
coherently describes his weekly work schedule, including typical daily start
and end times which he used to estimate a standard work week of sixty-five to
sixty-eight hours.… However, while Plaintiff’s testimony may lack precision, we
do not require employees to recall their schedules with perfect accuracy.… It
is unsurprising, and in fact expected, that an employee would have difficulty
recalling the exact hour he left work on a specific day months or years ago. It
is, after all, “the employer who has the duty under § 11(c) of the [FLSA] to
keep proper records of wages [and] hours,” and “[e]mployees seldom keep such
records themselves.”
This ruling is scary, and has
the potential to work extortionate results on employers. If all an employee has
to do to establish a jury claim in an off-the-clock case is say, “The
employer’s records are wrong; I worked these approximate hours on a weekly
basis,” then it will be impossible for an employer to win summary judgment in
any off-the-clock case.
Employers, the cost of defending wage-and-hour cases just went up, as did the
risk for businesses. Even meticulous wage-and-hour records might not save you
from a foggy memory of a disgruntled ex-employee.
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