A lot of people I meet with think alike. They think that they can’t bring a claim to recover their overtime or minimum wages because there are no time records. Often, there are no time records because an employer pays a weekly salary, a day rate, or only by commission. Other times, an employer knows that a person is working without legal papers, and pays him or her in cash, and so wants to not have a “paper trail” associated with having an undocumented person working for them.
The Fair Labor Standards Act (“FLSA”) is an extremely employee friendly law. There are a large number of cases that talk about how the FLSA is supposed to be interpreted to provide broad protections and that the exemptions to the FLSA are to be narrowly applied.
Consequently, it is actually the employer’s responsibility to make and maintain accurate records of the times that non-exempt employees (those who are entitled to minimum wages and/or overtime wages) start and stop working each day. Keeping track of the hours worked is supposed to be done by rounding to the closest 15-minute interval (such as 8:00, 8:15, and so on).
When an employer does not make and keep time records, then an employee can estimate the time that s/he worked each day or each week – even though trial. The employer then has to come forward and try to disprove the employee’s estimate some other way. In my cases, I have looked to such things as Sunpass records to see when an employee passed through tolls and also to when a business armed and disarmed its alarm as a way of determining when someone was working.
In sum, time records exist for the employer. The employer has to keep accurate time records. At the FairLaw Firm, I often represent employees – and those who should have been paid and classified as employees – to recover the overtime pay and minimum wages they earned. The FairLaw Firm handles these cases for employees on contingency and offers free consultations. You can also submit your claim for evaluation through the website.