The best defense for employers confronted with claims of “off-the-clock”, (i.e., unrecorded) work under the FLSA are accurate contemporaneous time records created by employees based on clearly communicated time keeping practices. The effectiveness of such records was recently demonstrated in Roberts v. Advocate Health Care, 2015 U.S. Dist. LEXIS 103631 (N.D. Ill. Aug. 7, 2015).
In Roberts, the plaintiff nurse alleged that she worked for a hospital “8 to 12 hours of unpaid overtime each workweek,” reiterating this allegation repeatedly in her deposition. However, the hospital demonstrated that plaintiff was responsible for submitting her own timesheets and was paid for hundreds of hours of overtime work during the period in question. Rejecting plaintiff’s assertion that the supervisor with whom she would meet at the end of her shift should have known that she was off-the-clock when they met and further should have known that she did not correct her timesheets after those meetings to ensure that all work time was captured, the court observed that the supervisor had 40 to 50 subordinate employees and it was not reasonable to expect him to be aware of who was on the clock and when. Rather, it was plaintiff’s duty to report her work time.
Defending hours worked allegations in FLSA litigation in the absence of time records is a frustrating and time consuming process. Development and enforcement of proper procedures is essential.