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I Work “Off-the-Clock” Hours For My Employer But Am Not Paid Overtime Compensation. I Need A Lawyer!

| Jul 23, 2015 | minimum wage violation, overtime time violation, tipped employee violations |

Ohio Wage and Hour Attorney Best Answer: Should I be paid for “off-the-clock” hours that I have to work? Who is responsible for keeping track of my hours worked? What kind of lawyer do I need to sue my employer for overtime violations?   

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Here at The Spitz Law Firm, LLC, our wage and hour lawyers are committed to representing individuals who have been denied lawfully earned overtime compensation under the Fair Labor Standards Act (“FLSA“). As our attorneys have discussed before, the FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular hourly rates for hours worked beyond 40 per week, and further provides that employers who break this law are liable to the aggrieved employees for both back wages and an equal amount in liquidated damages, plus reasonable attorney’s fees and costs. (See Can I Sue My Boss Individually For Not Paying Me For Overtime? I Need A Wage Lawyer!; Are IT Employees Entitled To Be Paid Overtime At Time And A Half? Best Attorney Reply!; Top Wage and Hour Lawyer Reply: As A Salaried Employee, Am I Exempt From Overtime Pay?; Should I Be Paid Overtime Even If I Have The Title Manger? Top Ohio Wage and Hour Lawyer Reply!; Top Wage & Hour Lawyer Reply: Can My Job Cheat Me Out of Overtime By Changing Names?; and Should I Be Paid If I Need To Work Through My Lunch Breaks? I Need A Lawyer!)

When handling wage and hour cases, including overtime compensation cases, the problem that arises the most with clients is that they neglected to keep their own records of their actual hours worked or failed to keep any sort of record which would show “off-the-clock” hours that were worked by the employee. Such evidence, when available, is extremely useful to our lawyers in proving that an employee worked hours that may be different than those hours shown on a company record or timesheet. In fact, a common trick by employers is to tell employees that have to record “only 40” hours on their timesheets and refuse to allow employees to record time that is more than 40 hours per week. (See My Employer Is Not Paying Me For All Of The Time I Work. I Need A Lawyer!; Can I Be Fired For Refusing To Clock Out Before I’m Done Working? I Need A Lawyer!; and When Does My Job Have To Start Paying Me? Best Wage Lawyer Reply!). If the employee does not keep his or her own records verifying more than 40 hours per week, how is a Court or jury to know who is telling the truth when the company says that the timesheets are accurate and the employee says they are not accurate? Unfortunately, many employees neglect to keep these types of independent records so when they go to file a lawsuit, they are left shorthanded. (Of course, the is an app for keeping track of time and overtime that is available from the Department of Labor (“DOL“).

To learn more about your wage and hour and over time rights and potential claim, schedule a free initial consultation with attorney Brian D. Spitz and the employment lawyers at The Spitz Law Firm.

But, even if you have not tracked all of the hours that you have worked, the Sixth Circuit Court of Appeals (Ohio) very recently extended a helping hand, holding that even in such cases where the employee failed to keep his or her own records, testimony alone that these hours were worked should be sufficient to survive summary dismissal of the case and allow a jury to hear the case.

Specifically, in Moran v. Al Basit LLC, the Sixth Circuit Court of Appeals dealt with the question of what proof the plaintiff was required to set forth during a pending motion for summary judgment in order to create a genuine issue of material fact that he or she worked over 40 hours per week possibly entitling the employee to unpaid overtime compensation. In Moran, the plaintiff testified that “he worked on average of sixty-five to sixty-eight hours per week.” In contrast, the defendant argued that Moran only worked about 30 hours per week and offered paystubs and timesheets as alleged proof of its argument. Having these facts before it and a district court ruling granting summary judgment, the Court of Appeals examined one question: “Where Plaintiff has presented no other evidence, is Plaintiff’s testimony sufficient to defeat Defendant’s motion for summary judgment?” The Court of Appeals then stated, “We hold that it is.”

The Court of Appeals then explained its holding with the following:

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. The district court characterized this testimony as “somewhat vague.” (R. 26, Opinion and Order, Page ID # 475.) However, while Plaintiff’s testimony may lack precision, we do not require employees to recall their schedules with perfect accuracy in order to survive a motion for summary judgment. 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.” Anderson, 328 U.S. at 687. Defendants emphasize the fact that Plaintiff’s testimony is inconsistent with the allegedly contemporaneous timesheets Defendants provided to the court. But these timesheets do not amount to objective incontrovertible evidence of Plaintiff’s hours worked. Plaintiff denies the validity of these timesheets, which were handwritten by Defendants, and contends that Defendants sanctioned his overtime work. Whether his testimony is credible is a separate consideration that is inappropriate to resolve at the summary judgment stage.

This is a very employee-friendly decision from the Sixth Circuit for purposes of FLSA overtime compensation claims. Essentially, as long as the employee can articulate in some assembled fashion the hours he or she worked during employment then the employer should not be entitled to summary judgment. As such, the Moran decision reaffirms that FLSA overtime cases should go to a jury even with no other evidence of the time worked by the employee other than the employee’s word on the matter.

If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at The Spitz Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at The Spitz Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.

Disclaimer:

The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.