Both federal (the Fair Labor Standards Act or FLSA) and Kentucky state law require employers to keep and maintain accurate records of the time an employee works.  Frequently, however, the employer neither keeps nor maintains accurate records because there is deliberate denial of the employee's right to be paid overtime.  What then and by what means can the employee prove his or her overtime hours worked? 

The Supreme Court gave an answer recently in Tyson Foods v. Bouaphakeo.  The employer, Tyson Foods, did not keep accurate time records of the time it required employees to put on and take off (calling donning and doffing in the overtime case world) protective clothing needed for their jobs. The employees had an industrial relations expert review some 744 videotapes and concluded that it took 18 minutes for employees in the company's cut and trim departments and 21.25 minutes for employees in the kill department.  (The employees worked in a pork-processing department in Iowa). This representative evidence was good enough, the Court ruled.

Can an Employer Benefit from an Unlawful Failure to keep Time Records?

In overtime cases where the employer does not keep accurate time records, the employer is not permitted to benefit from it by arguing that the employee cannot reliably prove the amount of overtime worked.  This goes back to one of the Supreme Court's earliest overtime decisions, Anderson v. Mt. Clemens Pottery Co., where as the Court explained:

Instead of punishing "the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work," the Court held "an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if her produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.

Employers cannot benefit from their failure to keep and maintain accurate records of their employees' time worked; representative evidence can be enough to establish the overtime claim.

Lexington, Kentucky overtime lawyer Robert Abell represents individuals and employees in recovering the overtime and wages they've earned but not been paid; contact him at 859-254-7076.

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