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February 24, 2021

Fifth Circuit Reaffirms Employer’s Responsibility of Recording Overtime Hours

It is the employer’s responsibility to keep track of employee overtime hours, and when they fail to do so, employees get the benefit of a relaxed standard of proof: they only need to prove their hours of work by a “just and reasonable inference,” including by estimates, averages, and approximations.
Home » News » Fifth Circuit Reaffirms Employer’s Responsibility of Recording Overtime Hours

Wed, 02/24/2021

It is the employer’s responsibility to keep track of employee overtime hours, and when they fail to do so, employees get the benefit of a relaxed standard of proof: they only need to prove their hours of work by a “just and reasonable inference,” including by estimates, averages, and approximations.

On February 9, 2021, the U.S. Court of Appeals for the Fifth Circuit reinforced a bedrock principle of federal overtime law: it is the employer’s responsibility to record overtime hours, not the employee’s. In U.S. Dep’t of Labor v. Five Star Automatic Fire Protection, LLC, the Fifth Circuit affirmed a trial verdict for over $245,000 in back pay, liquidated damages, and damages for payroll errors, based on testimony from just six former employees.

Without any written record of the unpaid work hours, the employees relied on damages calculations based largely on time estimates from employee interviews by the Department of Labor’s investigator. In response, defendant-employer Five Star presented a summary chart of its own, purportedly showing schedule variations that should have been included in the plaintiff’s calculations. The court accepted the employees’ summary chart, but rejected the defendant’s because, as the Fifth Circuit put it, “Five Star mainly contests that the damages award was an approximated number. But that’s what [the law] allows when, as here, FLSA-required time records are incomplete.”

If you believe you may have been underpaid for your overtime work and would like to discuss how this decision may relate to your case, please contact us at  info@mselaborlaw.com or 202-833-8855.

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When McGillivary Steele Elkin LLP decides to take your case, it is because we believe there is an unacceptable workplace violation that has negatively impacted you or resulted in your employer paying less than what the law requires and which we have a reasonable chance of remedying. We recognize that meritorious claims should not go unremedied because of the level of a person’s resources.

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