When it comes to the Fair Labor Standards Act (), unpaid overtime claims are perhaps the most feared charges. That’s because if an employer can’t show who worked when, it may be at the mercy of the employee’s memory. And that’s hardly an impartial source during litigation.
It’s important to have solid records showing the hours worked, even for. If it turns out the employee should have been classified as nonexempt, you’ll have to provide compelling evidence of the hours the employee actually worked.
If an FLSA case does go to trial, you can be sure the employees’ attorneys will try to get their hands on every document you may have that disputes your time records—including calendars, e-mails and computer time sheets kept by the employees themselves. If these don’t match up with your records—or if it seems they were destroyed under suspicious circumstances—expect trouble.
Recent case: Paul Vennet and several other former admissions advisors for American Intercontinental University Online claimed they hadn’t been paid overtime under the FLSA and the Illinois Minimum Wage Law. The lawsuit grew to include about 150 former advisors.
They claimed there were phone records, paper calendars, electronic time sheets and other documents that could help prove the hours they had worked. The employees’ attorneys asked the university to fork over any records they might have. Unfortunately, the phone logs had been taped over and many of the computers had been reformatted after the employees quit.
Because the attorneys for the former employees claimed they had experts who could reconstruct the logs and computer files, the court said they should have a chance to recover the information and make their case in court. (Vennet, et al., v. American Intercontinental University Online, et al., No. 05-C-4889, ND IL, 2007)