How Can I Prove I Am Owed Overtime If My Boss Does Not Keep Time Records?

Very often, employees will work hours far in excess of forty (40) each week and do so on a regular basis. These employees know that the law requires they be paid one-and-one-half (1½) times their regular hourly rate for hours worked each week in excess of forty (40). These employees, however, are tentative to assert their rights or seek the assistance of an attorney because neither they nor their employers have time records showing the overtime that the employee clearly and consistently worked.

In no uncertain terms, it is the employer’s legal responsibility to keep time and pay records for their employees. Employers have a legal obligation to record: the dates of the workweek, the regular hourly rate, the hours worked each day and the weekly total, the straight time wages paid, and the overtime paid. If an employer does not follow this very basic law, and does not keep accurate time and pay records, the law will not punish the employee. More specifically, the law will not require an employee to produce strict proof of hours worked and wages paid when the employer either failed to keep or destroyed these records.

The commonly accepted legal standard for proving that overtime wages are due and owing does not mandate that an employee prove each hour of overtime work with absolute accuracy or certainty. Indeed, the employee cannot be faulted where his or her estimation of damages lack the exactness and precision of measurement that would be possible had the employer kept records in accordance with the federal overtime law.

In such instances where neither the employer nor the employee has precise time and pay records, the Court’s solution is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer's failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee’s labors without paying due compensation as contemplated by Federal Law.

The law is clear in such cases where an employer fails to keep accurate time and pay records for employees. In such instances, an employee need only prove that he has in fact performed work for which he was improperly compensated and produce sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. Thereafter, the burden shifts to the employer to rebut the employee’s estimations and calculations by coming forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to rebut the employee’s estimations and calculations, the employee is entitled to damages, even though the result may be only approximation.

If you believe that you work or worked more than forty (40) hours per week and were not compensated at the rate of one-and-one half (1½) times your regular rate of pay for hours worked each week in excess of forty (40), you should immediately contact Gregg C. Greenberg, Esquire at The Zipin Law Firm, LLC 8403 Colesville Road, Suite 610, Silver Spring, Maryland 20910. Attorney Greenberg is available by Phone at (301) 587-9373 or email ggreenberg@zipinlaw.com

These materials have been prepared by The Zipin Law Firm, LLC for information purposes only and are not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between the sender and receiver. Internet subscribers and online readers should not act upon this information without seeking professional counsel.