Employees’ Testimonies Provide Adequate Sampling to Establish Employer’s Pay Practices

By Roger Achille October 18, 2022

Takeaway: The Fair Labor Standards Act (FLSA) requires every covered employer to keep records that include data about hours worked and wages earned for every nonexempt worker. Employer documentation can demonstrate employer compliance in defense against FLSA claims.

The 1st U.S. Circuit Court of Appeals affirmed a lower court's admission of employees' testimonies to establish the employer's pay practices by finding that the testimonies represented an adequate sampling of the employer's workforce.

The stonemasonry business is seasonal, starting around March and usually ending around the first snowfall. During those in-season months, the plaintiff claimed that he and his associates worked six days per week with weekly hours totaling about 57 hours. The plaintiff's former colleague also testified that his hours were similar. The employer contended that none of its employees worked more than 40 hours in a week and presented testimony from three other employees to that effect.

Yet, the employer had no time-keeping records to back up that assertion, casting blame on its bookkeeper, whom the employer described as "incompetent" and a "thief." The plaintiff alleged that the employer failed to pay him a minimum wage for all hours worked and failed to appropriately pay overtime in violation of the Fair Labor Standards Act.

The employer argued that the district court's admission of testimony and documentary evidence from the plaintiff's former colleague was erroneous.

"Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice," the court noted, citing the Federal Rules of Evidence. "Although there are no 'precise standards' for determining whether a behavior pattern has matured into a habit, two factors are considered controlling as a rule: adequacy of sampling and uniformity of response."

The former colleague testified about his own experience working for the employer from 2008 to 2013. He explained that he usually worked approximately 57 hours per week; that he kept a pocket calendar to record his hours, which he submitted to the employer to be paid; and that the employer did not pay him at the overtime rate. The employer objected to the former colleague's testimony, including his use of the pocket calendar. The employer insisted that he testified only as to his own work experience and that it was therefore not evidence of sampling or uniformity to qualify as routine-practice evidence.

However, the court remarked that his method of keeping track of work hours was corroborated by both the plaintiff as well as another employee called to the stand by the employer—meaning there was testimony from three employees in a company of less than 15 employees. Similarly, the court observed that two out of the less than 15 employees testified to their schedule of repeatedly working approximately 57-hour weeks and stated that the employer routinely did not pay employees for the full amount of hours they worked or pay them at an overtime rate.

Consequently, the court affirmed the district court's admission of the former colleague's testimony, viewing it as "at least a building block of evidence" that could be "reasonably understood" as describing the employer's business practice concerning the pocket calendar recording and submission of time worked from its employee.

Gonpo v. Sonam's Stonewalls & Art LLC, 1st Cir., No. 21-1352 (July 15, 2022).

Roger Achille is a labor attorney in Providence, R.I.



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