Overtime claims based on alleged “off the clock” work often turn on the question of whether the employer has “suffered or permitted” the employee to work uncompensated hours in excess of forty in the workweek. The Court of Appeals for the Fifth Circuit has affirmed a Mississippi district court’s finding that an employer did not violate the FLSA where the Plaintiff failed to record overtime hours in contravention of employer’s timekeeping policy.   Fairchild v. All Am. Check Cashing, 2016 U.S. App. LEXIS 1298 (5th Cir. Jan. 27, 2016).

Defendant’s “overtime policy prohibited hourly employees from working overtime without prior approval from a manager or supervisor. Further, its policy required that all employees accurately report their hours in its designated timekeeping system.” The Plaintiff acknowledged the Defendant paid her for reported overtime in conformity with the policy, but “testified that she also worked additional overtime that she did not report through the specified timekeeping system and for which she was not paid.”

The Court rejected Plaintiff’s claim that this testimony entitled her to payment for the additional overtime: “To hold that she is entitled to deliberately evade All American’s policy would improperly deny All American’s right to require an employee to adhere to its procedures for claiming overtime.”     The Court also rejected her claim that computer usage reports maintained by Defendant established “constructive knowledge” that she was working outside of the time reported on her timesheets. The Court held that while the employer “could have potentially discovered that she was working overtime based on the usage reports, “the question here is whether [the employer] should have known” and that “mere access” to this information “is insufficient for imputing constructive knowledge.”

This case reaffirms what should be self-evident: if an employer has an appropriately worded, properly communicated timekeeping policy, and employees fail to comply with it, employers are not liable to those employees absent proof that they had knowledge of the work the employees failed to report. Mere access to computer records that might, upon investigation, reveal the employee worked overtime, is insufficient to establish that knowledge. An employer need not become a detective to determine whether overtime has been worked when it has an established procedure for reporting the time; reliance on that procedure is permissible, as it must be for businesses to operate.