Joint Employers Weren’t on Notice About Overtime Despite Off-Hour E-Mails

By Emily R. Marr Apr 26, 2017


A federal district court judge rejected the notion that the Fair Labor Standards Act (FLSA) requires joint employers to undertake such "extraordinary" measures as tracking off-hour e-mails to assess whether employees are working overtime without appropriate compensation.

Shaunpen Zhou, a former systems administrator for IBM/Artech Information Systems who worked the night shift, filed a complaint against the employers alleging that they deprived him of overtime compensation in violation of the FLSA.

Both Artech and IBM were Zhou's employers for purposes of his civil rights claims. Although Zhou signed an employment agreement with Artech alone and Artech paid his wages, IBM exercised significant control over every other aspect of Zhou's employment. IBM controlled Zhou's work assignments and when the tasks were to be completed, provided him with equipment and a workspace, and determined when his employment would end. 

Zhou argued that he communicated with the employers repeatedly, by e-mail and other means, indicating that he had a heavy workload and that he routinely worked in excess of 40 hours. In response, the employers noted that Zhou claimed overtime (and was paid for all the overtime he claimed). The employers further noted that there was no reason that they should have construed Zhou's communications to mean that Zhou worked more overtime than he claimed.

Zhou argued that, nonetheless, his supervisors should have been "on notice" that he was working above and beyond the overtime hours he claimed. Toward that end, Zhou pointed out that "he was active on his e-mail and instant messaging system during the daytime hours" even though he was scheduled for evening shifts. Accordingly, Zhou argued that the employers should have been able to piece together this evidence and deduce that he worked more overtime than he had claimed.

[SHRM members-only toolkit: Calculating Overtime Pay in the United States]

The district court rejected the notion that employers have to play detective with regard to determining an employee's overtime hours. The district court noted that the employers "maintained a specific tool for reporting regular and overtime hours," made inquiries into Zhou's hours, and regularly emphasized the importance of accurately reporting all hours worked. This, according to the district court, was enough.

The district court made clear that employees have an affirmative burden to comply with their employers' policies regarding reporting overtime. Toward that end, the district court stated: "To require [an employer] to painstakingly wade through e-mails between itself and Zhou, which do no more than raise the possibility that he was being overworked, or to compare e-mail and instant message responses to Zhou's time sheets, would be to relieve Zhou of his responsibility to comply with [the employers'] policies regarding the reporting of overtime. The law is clear that this is not required."

Zhou v. IBM, N.D. Iowa, No. 15-CV-1027-LRR (March 31, 2017).

Professional Pointer: This case highlights that employers are responsible for taking reasonable efforts to ensure compliance with the FLSA but that the law does not require employers to assume the role of detective.

Emily R. Marr is an attorney with Marr Jones & Wang LLP, the Worklaw® Network member firm in Honolulu.

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