The short answer to this question is- Yes. The fact that an employer’s pay records and time records do not reflect the actual time worked by an employee does not bar the employee’s claim for unpaid overtime pay or minimum wage for those hours worked but not documented. To the contrary, an employer’s failure to accurately keep track of all hours worked by an employee is a violation of Federal overtime pay and minimum wage law.
Federal overtime pay and minimum wage law requires that every employer shall make, keep, and preserve records of employees and of the wages, hours, and other conditions and practices of the employment. Employers are required to maintain and preserve payroll or other records containing the hours worked each workday and total hours worked each workweek.
As demonstrated, it is the employer’s burden to maintain accurate records of the hours worked by its employees, and the employer cannot transfer its responsibility to the employees. The keeping track of hours worked in the workday is an obligation imposed by law upon employers, not their employees, and employers cannot be relieved of their statutory obligation by relying upon information recorded by employees. An employer cannot escape the record keeping duty by delegating it. The personal duty rests on an employer to inquire into the conditions prevailing in the business and an employer is not relieved of this duty because the extent of the business may preclude personal supervision and compel reliance on subordinates. If an employer delegates the responsibility to record the number of hours worked to the employee, it does so at its own peril.
Many employees believe they are not entitled to overtime pay or minimum wage because their pay records or time records do not reflect the overtime hours worked or because they reported less than all the hours actually worked to their employer. The failure to properly document the hours worked is the wrongdoing of the employer, not the employee. Employees should not, and are not under the law, penalized for such actions.
As the foregoing demonstrates, just because an employer’s pay records and time records do not accurately reflect the hours worked by an employee does not mean a claim for unpaid overtime or minimum wage cannot be pursued. If you have questions regarding your right to overtime pay or minimum wage you should contact an overtime pay and minimum wage lawyer at LaBar & Adams, P.A. at 407-835-8968 or fill out the online form located on our website.