Join Club

NOVA Legal Beat: How do I get Overtime if my Boss Doesn’t Track my Hours?

NOVA Legal Beat logo

Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. My employer very liberally tracks the hours I work. How can I claim overtime when there are no records I worked at least 40 hours a week?

A. Conventional logic says that if there is no record of something then it did not happen. However, this rationale generally will not work with employers who try to dodge their duty to pay employees overtime wages by not properly maintaining time and attendance records.

The Fair Labor Standards Act (FLSA) requires employers to pay covered employees who worked more than 40 hours during a work week at a rate of at least time-and-a-half. Further, the FLSA’s implementing regulation requires employers to “maintain and preserve payroll or other records” for employees not exempted from the act.

Most employers, to varying degrees, preserve and maintain such records. But an employer’s failure to do so will not save it from an FLSA lawsuit for unpaid overtime wages. An “employee should not be penalized ‘on the ground that he is unable to prove the precise extent of uncompensated work,'” the 4th U.S. Circuit Court of Appeals said in Lee v. Vance Executive Production (2001). Employers tend to run into problems when an employee who they thought was exempted from the FLSA turns out having a non-exempt status, or when the employee works “off the clock.”

In either case, to overcome the legal challenges posed by “inadequate or inaccurate” records, the 4th Circuit said in Lee that the employee must show he or she “performed work for which he was improperly compensated” and “how the amount and extent of that work as a matter of just and reasonable inference.” The court stressed that an employee does not need to “prove each hour of overtime work with unerring accuracy or certainty.” Instead, “enough evidence must be offered so that the court as ‘a matter of just and reasonable inference’ may estimate the unrecorded.”

It will not be enough, however, for the employee to only show he or she worked so many hours over 40 hours during a given work week. The employee must also show the employer knowingly allowed this uncompensated work to be performed. To support his or her case, the employee could show the employer engaged in “a pattern or practice of employer acquiescence in such work,” the 4th Circuit noted in Pforr v. Food Lion (1988).

Employees who believe they have been improperly denied overtime wages for hours they worked should immediately contact an employment law attorney who could prepare for them an FLSA lawsuit. Employers should also consult with an employment law attorney to determine which employees are eligible for overtime wages.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

Recent Stories

In loving memory of Joseph Robert Kapacziewski, who passed away in 2023 at the age of 41.

In loving memory of James Stuart Edmonds, who passed away in 2023 at the age of 84.

A man was shot in front of a lounge on Columbia Pike early this morning, continuing a string of violent incidents.

Good Friday evening, Arlington. Today we published articles that were read a total of 17124 times… so far. 📈 Top stories The following are the most-read articles for today —…

YULA’s ultimate frisbee spring season is now open for registration. We offer programs for middle and high schoolers – open to all players, whether they are new or have previous experience.Middle SchoolIn the Middle School league, mixed-gender teams practice once during the week and have games on Sunday afternoons. Spring league is a fun, safe, and positive environment. The season begins mid-March and wraps up with a tournament in early June. There are several options for practice days, so we can often work around schedule conflicts with other sports & activities.High SchoolThe High School program is organized by school of attendance and teams are classified by gender. New players will learn the basics in a supportive, welcoming environment. Experienced players will continue to develop their skills, and enjoy competition with other high school programs. The season concludes with a state level championship tournament in late May.All players are guided by experienced coaches who emphasize sportsmanship and good spirit. Ultimate is a fun sport with great camaraderie!YULA does not want finances to limit anyone from participating. Our middle school program offers a “Pay What You Can” cost structure and our our high school program is offering a $50 discount to new players.Visit our website to register and learn more. Sign up with a friend, but don’t delay, the season starts in March!http://www.yula-ulti.org

Submit your own Announcement here.

The Arlington-Aachen High School exchange is returning this summer and currently accepting applicants.

The sister-city partnership started in 1993 by the Arlington Sister Cities Association, which seeks to promote Arlington’s international profile through a variety of exchanges in education, commerce, culture and the arts. The exchange, scheduled June 17th to July 4th, includes a two-week homestay in Aachen plus three days in Berlin. Knowledge of the German language is not required for the trip.

Former participants have this to say:

_”The Aachen exchange was an eye-opening experience where I was fully immersed in the life of a German student. I loved biking through the countryside to Belgium, having gelato and picnics in the town square, and hanging out with my German host student’s friends. My first time out of the country, the Aachen exchange taught me to keep an open mind, because you never know what could be a life changing experience.” – Kelly M._

Read More

Submit your own Announcement here.

Valentine Pop-Up at George Mason University

Valentine gifts for someone special or for yourself are here at George Mason University from noon -4pm on February 14, 2023. Satisfy your sweet tooth with Kingsbury Chocolates, find a handmade bag from Karina Gaull, pick up treats from Village

Standup Comedy Showcase Starring Matt Ruby (Comedy Central)

Dead Horse Comedy Productions brings together top comedians from the DMV and beyond for a live standup comedy show!

Matt Ruby, Headliner

Matt Ruby is a comedian, writer, and filmmaker from New York City. His comedy has been filmed by

×

Subscribe to our mailing list