Ascertaining the actual “hours worked” by a plaintiff alleging uncompensated working time is one of a factfinder’s most thankless tasks, requiring the judge or jury to apply prevailing law regarding what constitutes compensable “work” to conflicting testimony regarding when, where and how the plaintiff performed that work, and how much work the plaintiff performed. Such determinations, where made by a judge following a so-called “bench trial”, are reviewed only for clear error, and are unlikely to be overturned on appeal. This deferential standard is evidenced in a new decision upholding a judicial determination that an FLSA Plaintiff did not work the unpaid overtime he alleged. Oldham v. United States Postal Serv., 2012 U.S. App. LEXIS 3784 (6th Cir. 2012).
In Oldham, the non-exempt postal worker Plaintiff asked the Court of Appeals for the Sixth Circuit to review the trial court’s assessment of the evidence and resulting conclusion that it did not establish that: 1) “he commenced work . . . before his scheduled "begin time" and worked beyond his scheduled "end time [during part of his employment]; or 2) the Defendant’s “timekeeping and payroll records [during another period] were inaccurate because he performed work that he was not compensated for during that time.” The appeals court reviewed the record and found that “[t]here was no corroborative testimony from any other . . . employee that suggests that Oldham would regularly arrive to start his workday [prior to the time indicated on his pay stubs]. Given the other testimony at trial, the district court did not clearly err in crediting the testimony of multiple non-party witnesses and the records of the USPS instead of Oldham’s own uncorroborated testimony about his arrival time.” In regard to the second assertion, the Circuit ruled that the district court properly relied on Plaintiff’s internally inconsistent testimony regarding his work at multiple post offices during the period at issue, along with impeaching testimony from other witnesses, to conclude that he did not work uncompensated hours not reflected in his time and pay records, as he alleged.
Oldham demonstrates the lengths to which employers can be pushed to defend and literally disprove claims of off-the-clock overtime. The first step, as always, is implementation and enforcement of compliant time-tracking and overtime policies.