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Evidentiary Issues In Overtime Claims: A Cautionary Tale

A CAUTIONARY TALE: AN EMPLOYEE WHO PRESENTS NO OTHER EVIDENCE OTHER THAN HIS TESTIMONY CONTRADICTING THE EMPLOYER'S TIMESHEETS AND PAY STUBS CREATES A GENUINE ISSUE OF FACT ALLOWING THE OVERTIME CLAIM TO PROCEED TO A JURY


The Sixth Circuit's opinion in Moran v Al Basit LLC, et al, decided on June 1, 2015, provides crucial guidance to employers and employees regarding the standard of proof required to show overtime hours worked in Fair Labor Standards Act ("FLSA") claims. Plaintiff, a mechanic, claimed that he was deprived overtime pay during the course of his employment with Defendants.

Plaintiff's sole proof of overtime was his sworn deposition testimony stating that he worked an average of 65 to 68 hours per week throughout his tenure, and that he was "required to be at work every weekday at 7:30 a.m., half an hour before the shop opened." He worked until 'the work was completed' which often meant he left work at 6:30 p.m. or 7:00 p.m. and it was not uncommon for him to work as late as 8 p.m. He provided further testimony regarding his work schedule on weekends. Plaintiff's testified that his efforts to obtain overtime payments were rejected and ultimately he was told to 'either hit the road or sty working like it is.'

The Defendants presented evidence in the form of paystubs, timesheets ('time schedules') and an affidavit of Plaintiff's supervisor in support of their position that Plaintiff only worked 30 hours per week. Defendants completed Plaintiff's timesheets and despite Plaintiff's varying work schedule, the timesheets showed Plaintiff as working exactly 30 hours every week.

In reaching its decision the Court in Moran, reviewed the legislative history of the FLSA and noted that '...the prime purpose of the legislation was to aid the unprotected, unorganized and lowest paid of the nation's working population; that is, those employees who lacked sufficient bargaining power to secure for themselves a minimum subsistence wage.' Moran, supra, quoting Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 707 n. 18 (1945). Further, an employee must show by a preponderance of the evidence, that he/she performed the work for the claimed lack of proper compensation. Citing to Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 516-17 (2014).

The Court of Appeals noted that although Plaintiff's testimony may have lacked "precision...we do not require employees to recall their schedules with perfect accuracy in order to survive a motion for summary judgment." The Court noted that it is expected "that an employee would have difficulty recalling the exact hour he left work on a specific day months or years ago." The Court reaffirmed the statutory duty placed on employers to maintain proper wage and hour records and that employees rarely keep such records.

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