By: Claudia D. Orr
The Fair Labor Standards Act (“FLSA”) seems to have so many potential traps for employers and recently I read about yet another that I’ve decided to pass on. In this Sixth Circuit case, the employer’s victorious dismissal was short lived and the case was remanded for trial by the federal appellate court all because the time sheets had been completed by the employer and the employee contested their accuracy. Let’s look at what happened in Moran v Al Basit LLC (6th Cir., 6/1/15).
Defendant Al Basit LLC operated auto repair shops in Michigan called “Auto Pro.” Plaintiff Moran worked as a mechanic at the one located in Warren from July or August of 2011 until April 30, 2013. He was hired at $300 a week.
Plaintiff contends that he worked an average of 65 to 68 hours a week. He testified that he was required to be at work every morning at 7:30 am (half hour before the shop opened) and to stay until the work was completed around 6:30 or 7:00 pm (and at times until 8 pm). Plaintiff also claimed that he worked from 7:30 am to 4:30 or 5:00 pm on Saturdays and occasionally worked on Sundays. However, he was never paid overtime, but occasionally received “a little extra” money.
By comparison, the defendant claimed that plaintiff never worked more than 30 hours a week and relied on paycheck stubs and “timesheets” to prove his hours. The timesheets reflected the “total number of hours [p]laintiff worked each day along with a weekly hour total for each week of [p]laintiff’s employment.” Apparently out of the 90 or so weeks of employment, the timesheets reflected that he worked exactly 30 hours in all but 5 of the weeks, despite the varying schedule noted from week to week. [For example, one week plaintiff was shown to work the following daily hour totals: 6 + 6.5 + 5 + 4.5 + 4 + 4 = 30 hours while another week he worked 8 + 4 + 4 + 4 + 4 + 6 = 30 hours.]
The defendant claims that timesheets were updated based on tracking an employee’s coming and going on footage from the security camera. The time an employee arrived and departed would be written on scraps of paper which would be tossed out after the timesheets were updated by the defendant. Defendant also relied on an affidavit of a manager who attested that plaintiff was never allowed to work when the shop was closed to the public and never worked over 30 hours a week.
Plaintiff alleged that he complained to one of the managers about not receiving overtime and walked out after the discussion became heated. He filed a lawsuit a few months later claiming he was not properly compensated for overtime under § 207 of the FLSA and that he was discharged in retaliation for asserting his rights. After discovery closed, defendant moved for dismissal and the motion was granted. Plaintiff appealed only the dismissal of the § 207 overtime pay claim.
The FLSA requires employers to pay time and one half the regular rate of pay for all hours actually worked in a work week over 40 hours unless the employee is “exempt” from overtime. As an auto mechanic, plaintiff was not exempt. Incidentally, misclassifying employees as exempt, when they are not, is a common error of employers, but not in this case. Plaintiff was properly classified and, instead, the dispute was over how many hours he worked each week.
To prevail on a claim under § 207 of the FLSA, a plaintiff is required to prove by a preponderance of evidence that he performed work for which he was not properly compensated. An employer found to have violated the FLSA is responsible for the unpaid wages, plus liquidated damages in an equal amount and the plaintiff’s attorneys’ fees.
The question before the Sixth Circuit was whether the plaintiff’s testimony about his work hours was, by itself, sufficient proof to defeat the employer’s motion to dismiss. The court held that it was. While the district court, in dismissing the claim, found plaintiff’s testimony concerning his work hours “somewhat vague”, the Sixth Circuit noted that employees are not required “to recall their schedules with perfect accuracy in order to survive a motion for summary judgement. It is unsurprising, and in fact expected, that an employee would have difficulty recalling the exact hour he left work on a specific day months or years ago. It is, after all, ‘the employer who has the duty under … the FLSA to keep proper records of wages [and] hours,’ and ‘[e]mployees seldom keep such records themselves.”
The Sixth Circuit noted that plaintiff’s testimony was inconsistent with the “allegedly contemporaneous timesheets [defendant] provided to the court. But these timesheets do not amount to objective incontrovertible evidence of [p]laintiff’s hours worked. Plaintiff denies the validity of these timesheets, which were handwritten by [defendant], and contends that [defendant] sanctioned his overtime work.” (Emphasis added) The issue of plaintiff’s credibility is for the jury to decide and should not have been decided by the court on a motion to dismiss.
So, the question is … would the employer have lost if it was the employee who handwrote the timesheets or if the employee was required to sign off each week and perhaps attested to their accuracy? Probably not. It would seem that the lack of variation in hours each week on the timesheets also troubled the Sixth Circuit. Rarely will an employee work exactly the same rounded off number of hours each week and some variations like 30.25 hours would have seem more credible. Incidentally, I have seen time records prepared at the time of the lawsuit rather than contemporaneously as the party had contended. Forensic tests can determine when ink was placed on a page. So, the lesson is, have your employee prepare their own timesheets and have them weekly sign off on the accuracy of the record.
This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an attorney at the Detroit office of the law firm Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM). She can be reached at firstname.lastname@example.org or at (313) 983-4863.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. June 2015.