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A Few Tips For Avoiding Off-The-Clock FLSA Claims

A Few Tips For Avoiding Off-The-Clock FLSA Claims
by D. Albert Brannen

Lawsuits against employers where employees claim to be owed for time they worked but which was not properly recorded are increasing. This article will summarize the problem for employers and offer a few practical tips for preventing or minimizing legal liability for the problem.

The basics

The Fair Labor Standards Act (FLSA) requires that most nonexempt employees be compensated no less than the federal minimum wage (currently $7.25 an hour) for all hours worked, at least 1.5 times their regular rate for any hours worked exceeding 40 in a workweek and that they keep accurate records of all hours worked.

Assuming an employer requires its employees to keep time records, employees who claim they worked additional time that was not captured on the time records and for which they were not compensated bear the initial burden of proving they actually worked that time.

If the employees present evidence of time record inaccuracies about which the employer knew or should have known, and as a result the employee's pay didn't meet the FLSA requirements, the burden shifts to the employer to prove the employee didn't actually work additional time. Meeting this burden of proof can be difficult for an employer.

What leads to an off-the-clock claim?

Typically, off-the-clock claims arise when an employer keeps what it believes are accurate time records but an employee alleges he/she actually worked more — often much more — than what is reflected on the time records. Some of the more common situations where the question of whether the employer knew or should have known of this purported off-the-clock time include:

• when an employee works through lunch and the employer has an automatic deduction for lunchtime
• supervisors directing or allowing employees to work prior to clocking in or after clocking out
• waiting for a computer to boot up to clock in for the day
• donning and doffing uniforms
• unpaid rest breaks

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