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

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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 

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

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