LABOR AND EMPLOYMENT LAW: UNSUBSTANTIATED AND SPECULATIVE ESTIMATES OF OFF THE CLOCK WORK ARE INSUFFICIENT FOR FLSA OVERTIME CLAIMS

Peter Mavrick a Miami labor and employment attorney has, on multiple occasions, successfully defended business from suits by current or former employees seeking unpaid overtime wages under the Fair Labor Standards Act (“FLSA”). In FLSA overtime wage cases, it is common for a plaintiff to allege that they worked a certain number of hours off the clock per week, and are thus entitled to be compensated for such work. These types allegations can create significant problems for employers who do not keep accurate records of the work performed by employees. According to the Eleventh Circuit in Jackson v. Corr. Corp. of Am., 606 Fed. Appx. 945, 952 (11th Cir. 2015):

It is well established that an employee bringing a claim for unpaid overtime wages must initially demonstrate that she performed work for which she was not properly compensated. However, it is the employer’s duty to keep records of the employer’s wages, hours, and other conditions and practices of employment. For that reason, in situations where the employer has failed to keep records or the records cannot be trusted, the employee satisfies her burden of proving that she performed work without compensation if she produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.

Thus, if an employer fails to keep accurate time records, it can be on the hook for work performed by an employee “off the clock,” so long as the employee produces sufficient evidence that the work was actually done. The Miami employment lawyers at the Mavrick Law Firm have extensive experience with these types of situations and know that a recent decision out of the Fifth Circuit limits an employee’s ability to recover damages for such work allegedly done “off the clock.”

In Ihegword v. Harris County Hosp. Dist., 555 Fed. Appx. 372 (5th Cir. 2014), a registered nurse brought suit against her employer alleging, inter alia, failure to pay overtime wages under the FLSA. The plaintiff claimed that she worked several uncompensated hours per week because her supervisor would tell her to “clock out” and to complete her unfinished work “off the clock.” To support her allegations, the plaintiff submitted a written declaration stating she “was instructed to clock out before completing her work and often worked approximately four hours of overtime after each shift, or twelve hours a week, and that she was paid for some but not all of her overtime work.”

The plaintiff’s employer countered by pointing to her deposition testimony, where she claimed not to remember how often she worked overtime and that on the days she remembers working overtime, it could have been “three or two or one” hours. Additionally, in her deposition, the plaintiff stated that she tried “as much as possible not to show in [her time card reports] the extent that [she worked overtime]” after clocking out. Moreover, the employer emphasized the time card reports contained in the record, which reflected that the plaintiff’s regularly scheduled workweek was usually less than forty hours per week and on a number of occasions, was less than thirty hours per week. The Fifth Circuit agreed with the district court’s holding that the evidence provided by the employer “soundly refuted” plaintiff’s claims of “clocking out” and performing uncompensated overtime work, and that there was a “complete lack of evidence, other than [plaintiff’s] unsubstantiated assertions speculated from memory, to prove that she actually worked overtime for which she was not compensated.” Based on the foregoing, the Fifth Circuit affirmed the district court’s decision and quoted the district judge’s conclusion that “an unsubstantiated and speculative estimate of uncompensated overtime does not constitute evidence sufficient to show the amount and extent of that work as a matter of just and reasonable inference.”

Ihegword is very favorable for employers, especially employers who fail to keep accurate time records, because it establishes that employees must provide more than just unsubstantiated and self-serving affidavits or declarations to sufficiently show the amount of uncompensated work performed. If you or your business is currently involved in overtime wage litigation under the FLSA or if you simply would like more information regarding the FLSA’s requirements for employers, please contact the Miami employment attorneys at the Mavrick Law Firm.

Peter Mavrick is a Miami labor and employment lawyer who has successfully represented many businesses in overtime and minimum wage litigation in state and federal courts throughout Florida. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311.