Joseph: Hello and welcome to another installment of VLF’s Video Education Series. Today we are discussing recordkeeping requirements under the Fair Labor Standards Act or the FLSA.
Charles: Under the Fair Labor Standards Act or FLSA, it is the employers’ burden to keep records of the time worked. Joe what are we looking at as far as records for the hours’ worked?
Joe: Well, the employer has to keep accurate records, which would mean timecards or some sort of punched it, punched out system or some other methods so that the hours can be accurately recorded and it could be determined whether or not overtime is due.
Charles: Gentleman what other types of records that an employer must keep to meet its burden of having employee records of the work week on a weekly basis.
Joseph: As Mr. Lanza mentioned, you have to do it on a week basis, which means what you can’t do is— for example you pay every two weeks, well over two weeks you’re daily hours is you might have 45 the first and 35 the second so we are going to pay you just straight time, that would be a violation.
Charles: These kind of cases show up in court, we are seeing a high incidence of litigation concerning the Fair Labor Standards Act. You also have employees who file these suits that arbitrarily claim that they worked 60 or 70 hours a week. What’s an employer to do? What’s a recourse to that?
Joseph: If the employers kept accurate records, they have evidence to show. However, if they haven’t kept accurate records, unfortunately, they are going to be in a bit of a predicament because the court —I’ll let you talk about this Joe, can make inference to the employer’s detriment.
Charles: How does that work Joe? How’s that inference work?
Joe: As Joseph said, the burden is on the employer to come forward with adequate evidence of accurate hours kept. If that doesn’t happen, the burden then shifts to the plate of the employee to bring forth from which the number of hours worked can be reasonable and justly inferred by the court.
Charles: What if they just have a sworn statement saying, “I work 70 hours a week,” and that’s it, nothing else? Is that going to be sufficient?
Joe: That may be enough depending on the state of the employer’s records. If the employer failed to keep any record or whatsoever, and that does happen from time to time, then the sworn statement by a plaintiff maybe sufficient.
Charles: Joseph you mentioned the hours that are worked in the work week. What is the maximum number of hours the employee may work before overtime is incurred?
Charles: Straight 40?
Charles: What’s an employee to be paid if he or she works more than 40 hours per week?
Joseph: Well, then every hour of additional work requires a payment of an overtime premium, which is calculated based on that particular employees’ regular rate during that particular week.
Charles: To reiterate Joe Lanza, if that employer does not have records on a weekly basis of the hours employee had worked, then can a court consider the naked statement of an employee?
Joe: A court can consider the naked statement of an employee. Although I would point out that rarely do you have a complete vacuum of evidence other than the state by an employee.
Joseph: As we know, the rules are changing over time in the FLSA. In the most recent administration, the present, a lot of the rules are taking effect in December and some of those rules were not necessarily addressing recordkeeping, do impost higher penalties, increasing the required weekly salary to fit into a certain exemption.
Recordkeeping for example, you don’t keep time record for your managers because you assumed their exempt but that might be an issue in six months.
Charles: To learn more about recordkeeping requirements of the Fair Labor Standards Act, please visit our website at vethanlaw.com.
Joe: Your problem is our business.
Charles: See you next time.