When employees claim that your company failed to pay their overtime, you win if your company does this.


The Fair Labor Standards Act requires employers to pay covered nonexempt workers overtime pay at a rate not less than one and one-half times the regular rate of pay after 40 hours of work in a workweek. So what happens when employees claim not to receive premium overtime pay despite working more than 40 hours in a workweek?

For starters, employees have the burden of proving that they actually worked more than 40 hours. And an employee’s conclusory statements without any supporting facts won’t cut it.

For example, in this recent Sixth Circuit decision, a postal worker thought that she was shorted overtime hours. She claimed to have clocked in and out, but postal service records showed no swipes at the beginning or end of one of the workdays in the workweek. Her supervisor discovered the error and manually corrected it. But the employee disagreed with the hours recorded.

While the postal worker — let’s just call her “plaintiff” — flagged the issue a few times, she never specifically claimed that she had worked more than the seven hours and 48 minutes of overtime that the manually adjusted time records reflected. And even though the USPS had a form that the plaintiff could have completed to document the hours that she claimed to have actually worked, the plaintiff never filled it out.

Plaintiff’s failure to utilize the USPS system for reporting hours worked proved to be the downfall of her FLSA claim. For if an employer has a reasonable process in place for an employee to report uncompensated work time, and the employee fails to follow the process, the employer is not liable for non-payment.

In this instance, the plaintiff presented no evidence –other than her say-so — that she worked more than the seven hours and 48 minutes of overtime for which USPS compensated her.

Geez, all she had to do was fill out the USPS form. But, she didn’t do that.

So, take a lesson here from the USPS. Have a good system to record hours worked. Educate your non-exempt employees about how to record hours worked. Implement a written policy that deters non-exempt workers from working unscheduled hours absent prior written permission from a supervisor or manager. And train managers on said policy. Also, make sure that managers and supervisors do not abuse the system by asking employees to work extra hours (e.g., even just checking emails and texts) unless they intend to pay them for it.

“Doing What’s Right – Not Just What’s Legal”
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