Just because your employer is not keeping records does not mean “time is an illusion” and they get to steal your wages—you may still be able to prove what you are owed!

Wage theft—when employers fail to pay their employees the amounts they are legally required to for the work their employees perform—is by some estimates more common than all forms of robbery combined. Ross Eisenbrey, Wage Theft Is a Bigger Problem than Other Theft – But Not Enough Is Done to Protect Workers, Econ. Pol’y Inst. (Apr. 2, 2014), available at http://www.epi.org/publication/wage-theft-bigger-problem-theft-protect [https://perma.cc/E6FY-F992]. A significant part of that is unpaid overtime in violation of the federal Fair Labor Standards Act (“FLSA”).

Given the magnitude of the problem and the limited resources of the U.S. Department of Labor, the burden is often on you as the employee to sue and prove that you are owed overtime pay, as well as how much you are owed. The FLSA requires employers to keep records of employees’ wages and hours, but does not allow an employee to sue employer just for failing to keep proper records. Thus, often—especially in situations where your employer is illegally treating you as a salaried employee to avoid paying you overtime altogether—you can have a hard time even figuring out what you are actually owed.

While whether you the type of employee who is owed overtime is a complicated enough topic in its own right, this article focuses on how you can prove how much you are owed in a situation where your employer may have set things up to make that as hard as possible.

As far back as 1946, the U.S. Supreme Court recognized this problem. In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), the Court held that if you can show that you entitled to overtime under the FLSA but your employer failed to keep adequate or accurate records, you are not required to prove exactly how much overtime you worked. To do otherwise would make a mockery of the FLSA’s rules and create an “impossible hurdle” for employees.

Under Mt. Clemens and later decisions, if you can estimate your lost wages “as a matter of just and reasonable inference,” you may still be able to prove your case. Your testimony estimating the number of hours you worked can be enough, especially if you have corroborating evidence like others’ testimony or your own records of your work. However, being specific is key: you should be able to explain how you arrived at your estimate in a way that make sense, ideally discussing specific days and hours worked. Being consistent and as accurate as possible in those estimates is also important. Unfortunately, that can be a challenge if your employer has been violating the FLSA for years.

Even if you are unable to give clear and specific testimony about your own hours worked, specific testimony by a representative sample of employees working your same job may also be enough. In a “collective” FLSA action, a large group of employees whose rights have been violated may be able support one another if enough of them are able to estimate their lost hours. A sample size as small as eleven percent of employees may be enough. Even if there are slight variations and those employees’ stories don’t line up 100 percent with your situation or each other, their estimates may still carry the day.

If you can show a “just and reasonable inference” of your lost wages like and the employer cannot disprove that inference, the courts can compensate you based on your estimated damages. In addition, since Mt. Clemens courts have held that your employer’s failure to keep adequate records of how much its employees worked may be evidence that it was willfully violating the FLSA, potentially entitling you to liquidated (or double) damages.

If you believe your employer has been violating the FLSA but are unsure if you can prove what you are owed, you should talk to employment attorneys like Rob Wiley, P.C.

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