[author: Michael Cardman, XpertHR Legal Editor]
When employers fail to keep accurate wage and hour records, the burden of proof on employees is lowered substantially. Employees have prevailed in Fair Labor Standards Act lawsuits with nothing more than estimates of how many hours they worked based on their own personal recollections.
But, as a new court ruling illustrates, the burden of proof is not so low that an employee can win with testimony that is "too vague to be credible."
In Daniels v. Realty Llc, +2012 U.S. App. LEXIS 20044 (2d Cir. 2012), the 2nd U.S. Circuit Court of Appeals rejected the appeal of an apartment building handyman who claimed he worked off the clock overtime for several hours every week.
The defendant, a limited liability corporation that runs the apartment building, conceded that it did not keep accurate records of the handyman's hours worked, but disputed that the handyman worked as many hours as he claimed.
Under Supreme Court precedent, if an employer does not produce accurate records, an employee can meet his or her burden of proof "if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Anderson v. Mt. Clemens Pottery Co., +328 U.S. 680 (1946) (emphasis added).
Although an employee's testimony can provide the basis for such a just and reasonable inference, the district court found the handyman's testimony unconvincing. "For example, [the employee] did not describe how long it would take him each day to sweep and mop the Building's common hallways, or dispose of the garbage. … Based on [his] description of the Building and what he did on a daily basis, it is simply not plausible, let alone reasonable to infer that he worked 10 hours per day as he claims."
The employee appealed to the 2nd Circuit, but it rejected his motion, holding that "We find no error in the district court's analysis."
Employers can take some comfort from the Daniels ruling that the burden of proof in FLSA litigation is not so low as to be nonexistent. But of course, a more prudent course of action is simply to comply with the law's recordkeeping requirements in the first place.