Proving Unpaid or Miscalculated Overtime Wages
Overtime pay is regulated by the Fair Labor Standards Act (FLSA). The FLSA requires that covered employees be paid a minimum wage, plus overtime at a rate of 1.5 times the employee’s regular rate of pay for every hour worked over forty hours in a workweek. It is common for employers to miscalculate employees’ overtime wages or fail to pay overtime altogether. Sometimes employers do this unintentionally, due to a lack of understanding of the state and federal laws regulating overtime pay. Often, though, the failure to pay overtime is intentional and is done to cut corners and save the employer money.
In this post, our experienced Tampa overtime pay attorneys at Florin Gray will explain various methods we can use to help you prove your claim for unpaid overtime.
When the Employer Keeps Accurate Time Records, but Miscalculates Overtime Pay
If your employer paid you overtime but miscalculated what you were owed, it is fairly straightforward to prove your claim. For example, if you were paid ”straight” time for overtime hours, instead of being paid 1.5 times your regular rate of pay, we can look at your paystubs, timesheets, or whatever method was used to keep track of your work-time to figure out the correct overtime amount.
When the Employer Does Not Keep Accurate Time Records
More commonly, however, an employer will have employees perform “off-the-clock” work or “shave” hours off an employee’s work time and/or fail to keep any record of overtime hours worked. The employer knows that it is violating the law and does not want any record of the illegal activity. Here are some methods we can use to prove your claim when your employer has not kept accurate records of your work time.
(1) Witness Testimony
Employees who worked with you and witnessed you working the overtime hours can be relied upon in the absence of accurate time records. This method of proof, however, is not without its challenges. Current employees may be unwilling to get involved in an FLSA claim for fear that they may lose their job or be retaliated against by the employer. Although it would be illegal for the employer to retaliate and the employee would have legal recourse, that doesn’t stop employers from violating the law and it doesn’t prevent employees who have witnessed illegal activity from being scared to come forward. Former employees who may have witnessed your overtime hours might be willing to testify on your behalf, although you must be careful about relying on former employees who were terminated from employment. The employer could try to challenge their credibility by saying that the employee is only testifying against the company in retaliation for being terminated.
Customers/clients of the employer can also be used to help you prove your overtime claim. For example, if your employer claims that your regular working shift ended at 5 pm, but you have a customer who will testify that you worked with him until well after 6 pm every day, this testimony will substantiate your claim. As with current employees, however, current customers may not want to get involved in legal action against a company they have a business relationship with.
(2) Your Records
If you have notes or a calendar or diary on which you kept track of your hours worked and the amount you were paid, these contemporaneous records can be used to contradict your employer’s inaccurate time-keeping records.
(3) Other Employer Records
Even if your employer does not keep proper time records, your employer may keep other written records that can be helpful in proving your overtime claim. For example, assume an employee works for a hotel as a housekeeper. Her employer has not been keeping track of her overtime but does require the employee to complete a log that states what time she enters a hotel room to clean it and what time she leaves the room when it is clean. This document can be used to recreate the number of hours the employee worked in a workweek and can be used to help prove her unpaid overtime claim.
(4) Computer Login Data
If you use a computer to perform your job functions, you may be able to use login information stored on the computer to prove your hours worked.
(5) Video-recording Devices
It is not uncommon for employers to have video-recording devices in the workplace. Recordings that demonstrate when you arrived at work and when you left work can be used to assist in proving your overtime claim.
(6) Your Testimony
If none of these methods of proof are available to you, you may rely on your own testimony. Remember, it is an employer’s legal obligation to keep track of its employees’ work time and amount of pay. The employer cannot shirk this responsibility simply by failing to keep proper records. You do not have to know exactly how many hours of overtime you worked. After all, the overtime violations may have been occurring over months or even years. The law understands that you may not recall exactly how many hours you worked during a particular week two years ago and, therefore, allows you to estimate the amount of time you worked in a workweek. You must, though, have a reasonable basis for the estimate.
Proving that your employer has underpaid you can be challenging, but our experienced overtime pay attorneys can help you gather persuasive evidence in support of your claim. Use the email form on this page to tell us about your situation, or call us today at (727) 254-5255.