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How Do I Prove That I Worked Overtime? I Need A Wage And Hour Lawyer!

On Behalf of | Nov 9, 2015 | Wage: Overtime |

Best Ohio Wage and Overtime Attorney Answer: Can I bring an overtime claim if I didn’t keep track of my time? Can my job avoid paying overtime by paying me under the table? Can my employer avoid paying overtime by claiming that I never worked more than 40 hours in a given week?

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As our wage and hour attorneys have blogged about frequently, the Fair Labor Standards Act (“FLSA“) requires that covered, non-exempt employees be paid at a rate of at least $7.25 an hour, plus time and one-half their regular hourly rates for all hours worked beyond forty per workweek. Ohio’s R.C. § 4111 provides protections similar to the FLSA. (See Am I Entitled To Overtime? I Need A Lawyer!; How Far Back Can I Sue For Overtime? Best Lawyer Reply; Are All Professionals Exempt From Overtime?; Should Uber Drivers Be Paid Overtime? Wage Theft Law; My Job Says I’m Not An Employee, No Overtime Pay!; and Overtime Ploy: My Boss Says I Work For Two Companies).

A successful overtime claim can be extremely costly for a defendant employer. For starters, the FLSA provides that an employee that successfully sues for wage theft may recover liquidated damages, in addition to back pay, as well as attorney fees and the costs of litigation. Additionally, the FLSA allows an aggrieved employee to bring suit not only on his own behalf but also on behalf of other similarly situated employees.

Frequently, the central issue in an overtime suit is the classification of an employee. Unscrupulous employers frequently misclassify employees as exempt for the purposes of the FLSA in an attempt to avoid paying the employees their lawfully earned overtime wages. Another hotly litigated issue that overtime law lawyers frequently encounter is the seemingly simple matter of how much overtime an employee has actually worked.

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The reason that the amount of time an employee has worked should be a simple matter is found in the FLSA itself. In addition to setting minimum wage and overtime requirements, the FLSA mandates that covered employers maintain basic records keeping track of their employees’ time. While the FLSA eschews any specific form for timekeeping records, certain basic information is uniformly required. Among other things, employers must record the name and personal identifying information of each employee, the hour and day that the employee’s workweek begins, and the total hours worked for each day and week.

Some employers, unsurprisingly, don’t keep great records. What happens when an employee who believes that she was refused her rightful overtime wages sues an employer who hasn’t kept good records? Is the employee just out of luck? A recent case out of the Northern District of Georgia answers this last question in a very loud, “No.”

In Epinoza v. Pure Air Filtration, Ysaias Espinoza brought suit against his former employer for unpaid overtime wages. The employer, Pure Air Filtrations, LLC, did keep some payroll records. In fact, Pure Air used time cards to track its non-salaried employees. However, once Pure Air recorded an employee’s time in Quickbooks, it destroyed the time cards. Pure Air admitted that it did not pay Espinoza and other employees any overtime but disputed the issue of how many hours Espinoza had actually worked. For his part, Espinoza, a temporary employee who was paid in cash, was able to produce a single time card indicating that he worked over 45 hours in one particular week. Additionally, a Pure Air supervisor testified in deposition that a full schedule at Pure Air required employees to work 42.5 hours per workweek.

Pure Air moved for Summary Judgment, strangely arguing that since neither the employer or employee had accurate records, the court should find in favor of Pure Air. It should come as no surprise that the court was not persuaded by Pure Air’s argument. The court correctly noted that:

“To survive summary judgment on a claim for unpaid overtime, a plaintiff must prove that he worked overtime without compensation.[Where the employer fails to keep proper and accurate records and the employee cannot offer convincing substitutes, however, the employee should not be penalized for the employer’s failure. Instead, the “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. At that point, the burden is on the employer to “bring forth either evidence of the precise amount of work performed or evidence to negate the reasonableness of the inference to be drawn from the employee’s evidence.”

The practical import of Espinoza is manifold. One, the case underscores the fact that a duplicitous or just plain lazy employer does not get a free pass in an overtime suit just because it did not keep records. Additionally, Espinoza makes clear that if an employee can offer any credible evidence that she worked unpaid overtime, in the absence of evidence from the employer conclusively negating that contention, the case will survive summary judgment. Because FLSA claims can be so costly to a losing employer, and because defending any suit in court is so expensive, a claim that is able to survive summary judgment will often result in settlement. Lastly, and related to the two points above, Espinoza demonstrates that if you think you are being shorted your rightful overtime, you should record the time you work. While Mr. Espinoza’s case would have gone forward on the basis of the supervisor’s testimony, even without that testimony, the lone time card that Espinoza was able to produce was enough to get the case past summary judgment.

As an aside, if an employee has not kept any records of the time she has worked and believes that she should have been paid overtime, it is sometimes a great idea to ask the employer, in writing, for her payroll records, stating that the reason is a belief that she has been undercompensated for overtime. An employer who responds to such a request by terminating or otherwise retaliating against the requesting employee is likely to face not only a suit for unpaid overtime but additional counts for running afoul of the FLSA’s anti-retaliation provisions.

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 Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at Spitz, The Employee’s 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.


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 Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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