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.

Am I an Employee or Contractor?

Many employers will make the bold assertion that an individual working for them is an independent contractor and not an employee. Under this classification, the employer will contend that Federal and State wage laws do not apply to employer’s employment relationship with employee. Very often, the employer is mistaken and its classification of the employee is fatally flawed.

It is well settled law that the mere fact that workers are labeled “independent contractors” does not make the workers independent contractors. On the contrary, courts look not to the label, but to the underlying “economic reality” of the relationship between the employer and the worker in determining whether a worker is an independent contractor or employee under the law.

Courts have established a six-factor test to determine whether a worker is an employee or independent contractor, based on “economic reality.” These factors, derived from United States v. Silk, 331 U.S. 704 (1947), are: (1) the degree of control that the employer has over the manner in which the work is performed; (2) the worker's opportunities for profit or loss dependent on his managerial skill; (3) the worker's investment in equipment or material, or his employment of other workers; (4) the degree of skill required for the work; (5) the permanence of the working relationship; and (6) the degree to which the services rendered are an integral part of the putative employer's business. No single factor is dispositive.

1. Control

The factor is the degree of control that the employer has over the manner in which the worker performs his work. Where an employer provides specific direction for how workers, particularly low-skilled ones, are to perform their jobs, courts have weighed the control factor in favor of employee status. The issue is not the degree of control that an alleged employer has over the manner in which the work is performed in comparison to that of another employer. Rather, it is the degree of control that the alleged employer has in comparison to the control exerted by the worker.

2. Opportunities for Profit or Loss

In this factor, the “profit” question turns on where a worker’s pay comes from. If the large majority of a worker’s pay comes from the employer, the employer is more likely to be considered an employee. However, if a worker is receiving pay from the individuals to whom he or she provides services, a worker is more likely to be considered an independent contractor. The “loss” question turns on who makes business decisions and whose income will be affected by such decisions. More specifically, if decisions such as when and where a worker works are decided by the employer and the employer stands to lose profit based on such decisions, the worker is more likely to be considered an employee. However, if a worker decide individually when and where to work, and a worker stands to lose profits based on such decisions, the worker is more likely to be considered an independent contractor.

3. Investment in Equipment

This factor turns on the degree to which a worker owns their own “tools.” Tools may include any equipment necessary for the performance of job duties. On balance, the more equipment and/or tools that are provided by the employer for the workers, the more likely that the workers are employees.

4. Degree of Skill Required

This factor turns on the degree to which specialized skills and knowledge are required to perform a worker’s job duties. If a worker’s job duties require skills that can only be acquired through a specialized degree or training, this suggests that the worker is an independent contractor. However, if a worker’s job duties do not require specialized skills or training and the skills to perform a worker’s job duties can be taught to general members of the public, this suggests that the worker is an employee.

5. Permanence of the Working Relationship

This factor turns on whether a worker is providing services on an ad hoc or sporadic basis, or whether a worker is consistently providing services for the employer. If the employer only contacts workers to provide ad hoc services when needed at the job site, such a work arrangement suggests that the worker is an independent contractor. However, if an employer hires a worker to provide services for an indefinite period or on an ongoing basis, such a work arrangement suggests that the worker is an employee.

6. Integral Part of the Business

This factor turns on what service the employer is in the business of providing. More specifically, the more closely connected the employer’s business is to the type of job duties the worker is performing, the stronger the presumption that worker is an employee.

Finally, it is important to emphasize that the determination of whether a worker is an employee or an independent contractor is rarely an absolute certainty. If you believe that you have been misclassified as an independent contractor and that you are really an employee, 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.