Call The Right Attorney™
No Fee Guarantee

How Do I Prove That I Was Not Paid Overtime? I Need The Best Wage And Hour Attorney!

On Behalf of | Jan 6, 2016 | Wage: Overtime |

Best Ohio Overtime Attorney Answer: Can I sue for unpaid overtime if my employer’s records show that I never worked overtime but I actually did work overtime? My paychecks show that I never worked overtime but I know I did. What can I do? What happens when an employer’s payroll indicates that all overtime was paid but it really wasn’t?

Best Ohio Overtime Attorney: Can I sue for unpaid overtime if my employer’s records show that I never worked overtime but I actually did work overtime? My paychecks show that I never worked overtime but I know I did. What can I do? What happens when an employer’s payroll indicates that all overtime was paid but it really wasn’t?

As a regular reader of our wage and hour attorneysovertime blog knows, the Fair Labor Standards Act (“FLSA“) requires that all covered, nonexempt employees be paid at least the federal minimum wage of $7.25 an hour, plus time and one-half for all hour worked beyond 40 per workweek. Similarly, Ohio Rev. Code § 4111.03 requires employers to pay nonexempt employees overtime wages for all hours above 40 per workweek. (See ​Am I Entitled To Overtime? Best Wage Lawyer!; If I Do Domestic Work, Can I Sue For Overtime Pay?; As A Salaried Employee, Am I Exempt From Overtime Pay?; and What If I Can’t Afford To Sue For Overtime Pay?).

An employee who has not been paid her rightful overtime may bring suit under either the FLSA or Ohio R.C. § 4111, subject to some limitations. While both the FLSA and Ohio R.C. § 4111 provide for the award of attorneys’ fees to a prevailing employee, the FLSA is sometimes a better option for an aggrieved employee, as it provides for an award of liquidated damages in addition to the unpaid overtime.

The FLSA requires that employers maintain accurate records of employees’ time. What happens, though, when the employer’s records and the employee’s experience conflict? That is, in a he said/she said scenario involving overtime, can an employee still prevail? A recent case in the Northern District of Ohio makes clear that employee’s testimony alone, even in the face of conflicting documentation, is enough to at least get an overtime case in front of a jury.

overtime, time and a half, wages, wage theft, Employment, Lawyer, attorney, law firm, Ohio, Cleveland, Columbus, Toledo, Cincinnati, employer, employee, Fair Labor Standards Act,

In Garcia v. SAR, the Honorable Judge James S. Gwin considered the overtime claims brought by Jose Garcia and Raymond Sutton, who sued their former employer, SAR Food of Ohio. SAR operates a number of Japanese restaurants in the Cleveland area, and Garcia and Sutton each worked for SAR in a number of positions, including as cooks. Unlike a lot of employers that our wage and hour lawyers run across, SAR actually paid employees for overtime hours. In fact, SAR paid Garcia and Sutton for some of the overtime that the pair worked, just, according to the pair, not all hours.

SAR paid employees overtime according to the schedules set by the restaurant managers. According to SAR, each employee was given a set schedule at the beginning of a week and the employee was supposed to make corrections to her respective schedule when she worked longer than her scheduled shifts. At the end of a workweek, the manager was supposed to give the corrected schedule to the employee for the employee to initial and then the schedule was to be submitted to payroll for processing. Moreover, each paycheck contained the statement, “Any questions concerning your pay, please call … Sarku Japan Payroll Department.”

Garcia and Sutton contended that from time to time they worked more hours than what was reflected in their schedules but felt intimidated and never complained about unpaid hours. Additionally, each testified that at times it was their managers, and not them, who initialed the corrected schedules for payroll.

SAR filed a motion for summary judgment arguing that because Garcia and Sutton never changed their initialed schedules to reflect unaccounted overtime, because neither of the two ever contested any of their paychecks, and because neither ever complained to HR about unpaid overtime, there was no issue of material fact as to SAR’s liability.

To prevail in an unpaid overtime case, a plaintiff must prove, by a preponderance of the evidence, that she performed work for which she was not compensated. In the Sixth Circuit Court of Appeal (Ohio), as established in Moran v. Al Basit, an employee can meet this burden based solely on her own deposition testimony. Here, Garcia and Sutton both testified that they worked hours for which they were not compensated.

Furthermore, both Garcia and Sutton testified that SAR managers submitted schedules to payroll that the managers knew did not reflect accurate timekeeping. This testimony was critical, as in the Sixth Circuit, if (1) an employer has a reasonable process for timekeeping and payroll and (2) if, because of an employee’s failure to follow that process, the employer is unaware of hours which should have been compensated, the employer may escape FLSA liability. Importantly, both factors must be met. Put another way, an employer may not avoid FLSA liability based solely on the employee’s failure to follow a procedure if the employer knows or should have known that the employee worked overtime hours.

Here, Garcia and Sutton both arguably failed to follow the employer’s process. However, the pair’s testimony that SAR managers were aware of the uncompensated hours was enough to get their claims to a jury.

The outcome in Garcia is sensible. On the one hand, an employer should not be able to escape FLSA liability based solely on the fact that an employee did not precisely follow an internal process for reporting hours worked. If that were the case, one can imagine that many employers would create overly complicated procedures simply in the hope that employees would be unable to comply, thus permitting employers to avoid paying earned overtime wages. On the other hand, if an employer does everything in it power to accurately track time and through no fault of the employer, the employer is unaware of compensable hours, it seems unfair to punish the employer, especially if the fault lay with an employee.

The moral of this story is to get help from a wage and overtime lawyer as quickly as possible to help you decide the right course of action – even if you are still employed.

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.

"" "