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Employer That Failed to Keep Accurate Records Must Pay Overtime

A person writing a time sheet on a piece of paper.

An employer that failed to keep accurate time records should have used its employee's calculations to determine the unpaid overtime owed to him, a California appellate court ruled.

The employee, who was a newspaper sales and marketing director, sued for unpaid overtime wages and estimated his overtime hours based on his recollection of his workload over the years. Additionally, one of the employee's subordinates and his supervisor testified at trial that he worked overtime hours at various events.

The employer didn't keep records of the employee's work hours to compare to the employee's estimates, but the trial court refused to award the employee any overtime wages. The trial judge said his testimony was too uncertain to support his claim that he performed unpaid work. The employee appealed, and the appeals court reversed the decision.

Burden on Employer

The consequences for not keeping accurate records should fall on the employer, not the employee, the appellate court said. In such a situation, the employee's evidence—even if imprecise—can provide a sufficient basis for damages.

The employee has carried out his burden if he proves that he has performed work for which he was improperly compensated and produces enough evidence to show the amount and extent of that work as a matter of "just and reasonable inference," the court said.

[SHRM members-only toolkitComplying with California Wage Payment and Hours of Work Laws]

The burden then shifts to the employer to produce evidence of the precise amount of work performed or evidence contradicting the employee's calculations. If the employer fails to produce such evidence, the court may then award damages to the employee, even if the amount is estimated, the court said.

In this case, it was clear that the employee performed additional work beyond his regular 40-hour workweek, the court said. The employee established this through his own testimony and the testimony of two witnesses.

Once the employee showed that he performed work for which he was not paid, the only thing left to determine was the amount owed, the court said.

The newspaper could have either provided specific details on the amount of overtime worked or introduced evidence disproving the employee's estimates. That did not happen in this case. The employee, therefore, should have been awarded overtime pay based on his estimates of how much he was owed, the court concluded.         

Furry v. East Bay Publishing LLC, Calif. Ct. App., No. A151986 (Jan. 4, 2019).

Professional Pointer: This case shows the importance of maintaining accurate time-keeping records. If the employer had such records, it would have been difficult for the employee to disprove the employer's assertions of how much overtime pay he was due. In that case, the employee's own recollections would not have been enough to establish damages.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 


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