While the FLSA’s “suffer or permit” standard is broad, it is not without limit.  Building on a prior decision, the Court of Appeals for the Seventh Circuit reviewed several purported justifications for imputing knowledge of alleged additional work asserted by a construction employee and rejected claims of alleged unpaid wages asserted by the former employee.  Gaines v. K-Five Constr. Corp., 2014 U.S. App. LEXIS 133 (7th Cir. 2014).

Plaintiff Gaines, a truck driver, offered three separate evidentiary bases for finding his employer had knowledge of alleged uncompensated work performed before his shift: (i) his own handwritten notation on some Daily Driver Reports (DDR) of an earlier start time than his scheduled start; (ii) testimony from a supervisor that Plaintiff was “always at work early”; and (iii) his own testimony that for some period of time certain supervisors would wait by his truck before his start time.  Citing  Kellar v. Summit Seating, Inc., 664 F.3d 169, 177 (7th Cir. 2011), the Circuit rejected each of these as a basis for reversing the trial court’s grant of summary judgment to the employer.  As to the first, the Court relied on unrebutted testimony that the payroll processer relied only on the official times entered at the top of DDRs, and did not scrutinize the entire form for additional notation from employees.  As to the latter two, the Court ruled, as it had in Kellar, that it could not envision “a reasonable inference [by a jury] that anybody knew [Plaintiff was working] based on the simple fact that K-Five supervisors may have seen Gaines come to work early.”  More broadly, the Court observed that Plaintiff offered “no evidence that, for the almost three years he was [allegedly] periodically working an extra 15 minutes at the start of his shift, he told anyone that he was working unauthorized overtime or that his notations at the bottom of his DDR were meant to indicate as such.”

Gaines reinforces the importance of a clear, formal, transparent timekeeping process, and appropriate employee training regarding the reporting of work time. Where such processes are in place, an employer is more capable of defending allegations of alleged uncompensated work time.