Lauren W. Kavanagh, Esq.
Trimboli & Prusinowski, LLC
It is imperative for employers to keep accurate time records of the hours their employees work. However, in this era of cloud computing and smart-phones, employees are able to work off-site and outside of traditional business hours, and these hours could be difficult or impossible for an employer to track. Since the work performed remotely after normal business hours may be compensable time for those who are not exempt from the Fair Labor Standards Act’s (FLSA) requirements, tracking these hours worked remotely are as important as tracking regular work hours. Failure to track these hours and compensate employees for the work having been performed could subject an employer to liability under the FLSA.
An employee who files an FLSA claim is also responsible for keeping accurate records of their hours outside the office. The Eighth Circuit recently held that it is not enough for an employee to simply attest that he or she is owed overtime for a certain number of hours- the employee must also be able to show that he or she worked the specific number of overtime hours allegedly owed to him or her. In Holaway v. Stratasys, Inc., 2014 WL 5755987 (8th Cir. Nov. 6, 2014), the plaintiff was a field service engineer who alleged that he worked an average of sixty to seventy-two hours a week because he traveled off site to service and install printers for clients as part of his normal job duties for the defendant employer. He was a salaried employee classified as “exempt” by his employer and therefore did not receive overtime pay, nor did his employer keep accurate records of his hours. Id. at *3.
The Court did not evaluate whether his classification as an “exempt” employee was correct, because it held that the plaintiff, “failed to meet even the relaxed evidentiary standard,” and only put forth “contradictory and bare assertions of his overtime hours” and did not put forth any proof or explanation of his calculation of overtime hours to him. Id. It was not enough for him to guess that he worked a certain number of hours- he had to show some evidence of the time he worked to move forward with his claim.
The Holaway case represents a win for employers defending against these types of FLSA claims because it emphasizes that employees seeking overtime compensation must have some evidence of having worked those hours. It also serves as a cautionary tale for employers since if an employee has records of time worked and the employer does not, the Court will likely rely upon the time records provided by the employee. This shows the importance of an employer establishing policies regarding working remotely and after hours, including checking and responding to emails and other electronic communications, as well as implementing practices to track the hours worked. Tracking and compensating employees for these hours worked can assist in protecting an employer from an FLSA claim.
