By Anne-Marie L. Storey

You are undoubtedly aware as an employer that you are obligated to pay employees for time worked, including overtime.  Questions sometimes arise, though, when an employee works “off the clock” then later argues they were not paid for that time.   This has become more prevalent as employees work increasingly from remote devices, such as I phones or I pads, and can easily become a problem if the employee fails to report the time but the employer is aware or could be aware that the work is being done.

A recent decision from the 10th Circuit Court of Appeals is supportive to employers in such a situation.  In that case, the employee was planning to take time off for the birth of his child and, to make up for that time he would miss, he alleges he worked an additional 80 hours from home prior to that leave.  The employer used a computer based time recording system.  The handbook did not include language specific to reporting overtime but it did require employees to record hours worked.   The employee did not do that for those 80 hours.  After the employee was terminated for performance related reasons, he sued under the Fair Labor Standards Act, among other things, alleging he was not paid for the extra time he worked from home.   

The court found that the employee presented sufficient evidence that he did actually perform the extra work, based on his testimony, his wife’s testimony, and discussions within the company about his work.  However, the court concluded he failed to present adequate proof of the amount of overtime “by justifiable or reasonable inference” because: 1) he did not enter any of the hours he alleged he worked from home in the timekeeping system; and 2) he did not keep any other record of any sort to document the hours worked.   The employee argued that it was the employers’ responsibility to keep accurate time records and that he should not bear the burden of proving the precise amount of overtime worked.    

The court determined that because the employer was able to show it had a method of keeping accurate records of hours worked and it was the employee who failed to keep the records, his claim failed.  Specifically, the court stated that “…where the employee fails to notify the employer through the established overtime record-keeping system, the failure to pay overtime is not an FLSA violation”.

This case was a victory for the employer because it was able to prove that it had a sufficient system of recordkeeping and that the employee failed to follow that system.  Some important lessons from the case are  that it is important to show that there is an established system made clear to employees, that the rules about timekeeping are enforced, that accurate records are actually kept and maintained, and, perhaps most importantly, that the system was available to an employee working outside of the office.  Had the employee not been able to access the system remotely, he may have had a stronger argument that the system was not sufficient to record his time.

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