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How Time Sheet Certifications Can Help Defeat Off-the-Clock Overtime Claims

In a recent article, I discussed the latest strain of overtime claims, namely “off-the-clock” claims. In these cases, employees allege that they did not get paid for all of the hours they worked. They further argue that they should be permitted to present their cases to a jury even if they lack any corroborating documentation to support their claims of unpaid overtime.

The Challenge Presented to Employers
The challenge and uncertainty these claims bring to employers was made painstakingly clear in a very recent case decided by the U.S. Court of Appeals for the Sixth Circuit. In Moran v. Ali Basit, LLC, et al., an auto repair employee alleged that he worked on average 65 - 68 hours a week for the entirety of his time (nearly 20 months) with the employer. The employer argued that the employee was hired to work 30 hours a week, and never worked more than 30 hours a week. The contemporaneous time records corroborated that the employee worked 30 hours a week, and was fully compensated for the time he recorded as evidenced by the paychecks and paystubs he received.

During his deposition, the employee disavowed his timesheets and claimed that they were “false documents.” The District Court granted the employer’s motion for summary judgment. The employee appealed. On appeal, the Sixth Circuit reversed the District Court’s grant of summary judgment and remanded the case to the District Court for further proceedings.

In so ruling, the Sixth Circuit found that the employee’s testimony alone was sufficient to create a material issue of fact to take the case to a jury, even though the employee admittedly had no corroborating evidence of the additional hours that he claimed to have worked. The Sixth Circuit noted that the timesheets were handwritten by the employer and disavowed by the employee. For his part, the employee argued that the timesheets were merely time schedules. The court reasoned that the timesheets did not provide objective incontrovertible evidence of the hours worked, and that a genuine issue of fact existed with respect to whether and, if so, how much overtime the employee worked.

Proactive Steps Employers Can Take
The Sixth Circuit decision illustrates the great difficulty employers have in defending off-the-clock overtime claims. One measure that might have changed the result in the Moran case was if the timesheets contained a certification along the lines of the following:

I hereby certify that this timesheet sets forth all of the hours that I worked in this particular workweek. I understand that my employer is relying upon the accuracy and truthfulness of the information that I have completed. I further certify that no supervisor has instructed me not to record all of the hours that I worked. I understand that no supervisor is authorized to instruct me not to record all of the hours that I worked.

I believe that such a certification if signed on a regular basis by employees can substantially enhance the ability of employers to succesfully defend off-the-clock overtime claims. These certifications are tantamount to a regular weekly (or bi-weekly) representation by the employee of the hours that she/he worked, as well as the fact that no one instructed the employee not to record all of the hours that were worked. Employers can enhance the usefulness of such certifications by including a discussion of the time recording procedures during the orientation process - having each employee sign an acknowledgement during that process that he/she was instructed how to complete timesheets and understands the significance of the certification contained in the timesheets that he/she will be signing on a regular basis. Further, employers should review the company’s overtime procedures during the orientation process. Finally, employers should review the overtime and timesheet procedures at regular staff meetings throughout the year and retain a memorandum that lists the attendees of all such meetings.

Employees deserve to be compensated for all the hours that they work. Employees who routinely sign timesheet certifications on a regular basis and who have been fully informed of the employer’s overtime and time recording procedures should not be heard to complain weeks, months, or even years after the fact that the timesheets that they signed did not accurately reflect all the hours that they worked. Employers should be able to rely upon the truthfulness of these certifications in conducting their business affairs without concern for belated claims of unpaid wages.

Marc Engel is an employment attorney and litigator at Lerch, Early & Brewer who advises managers of all types on employment issues, and provides strategies for preventing, defending, and resolving wage and hour claims. For more information about off-the-clock overtime issues, contact Marc at (301) 657-0184 or mrengel@lerchearly.com.

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