When Your Employer Doesn’t Keep Overtime Records

Most employers who have full time employees working for them are required to keep records of hours worked and pay overtime rates for anything worked beyond a normal 35-40 hour work week. In some cases, though, the employer doesn’t accurately keep records of employee’s work hours or overtime logged each week.  In some cases, it is an honest mistake but far too often the employer knows they are violating the workforce laws for employee compensation and they do not want any record of the illegal activity. Therefore, they do not record overtime hours so they cannot be claimed and do not have to be paid. In many cases, the employee is forced to fight to prove they worked the hours and fight for their pay. Here are some methods commonly used in the court cases to prove your claim when an employer has not kept accurate records for overtime and has not paid you for those overtime hours:

(1)  Witness Testimony
There are two key divisions for witness testimony that can come into play in your case- co-worker and customer/clients. Your co-workers could testify that they worked with you and saw you working after-hours on a regular basis and what days and weeks the overtime occurred. There is a down side to using this type of witness testimony though because you have to ensue the co-worker would not try to discredit you in court and there is also a chance that they could face repercussions from the employer after the case has been decided. Customer/client testimony is often more substantiated and holds more credit in court. A regular customer could testify that you worked with them until 6pm three nights a week when you were supposed to be off by 5pm- that would count for at least three hours of overtime pay a week your employer would owe you.

(2)  Your Records
Some employers are required to keep memos, emails, notes, or a work calendar that show the work done and that track the hours worked. These records can be compared to paycheck stubs and deposits and the amounts that you were paid by your employer each week. This is one of the strongest ways you can work to contradict your employer’s inaccurate time-keeping records and prove to the court you worked overtime hours that were not properly compensated..

(3)  Other Employer Records
Even if your immediate employer has poorly kept time records, your employer may have other records and documents that could be used to prove there is a discrepancy in work hours and pay hours. For example, you work for a hotel as a housekeeper and your employer has not logged you work hours accurately. However, they do require you to keep a daily log of when you start cleaning a room and when you finish each room. This document can be used to reconstruct your work hours and show when overtime work occurred. As long as it is a document used as part of your official work routine and normal record keeping it could be used in your case to back up your claims of owed overtime.

(4)  Other Forms and Data
If computers are used for your work, you likely have to log in and out each day and those logs can help show where you spend more time on the clock past your normal hours. There is also the option to use any video-surveillance recordings to show what work you did.  Recordings that demonstrate your arrival and departure times are particularly helpful.

(6) Your Testimony
If none of the above examples of proof is available then your own testimony can be used to fight for your pay. Remember, it is an employer’s legal obligation to keep track of its employees’ work time and amount of pay. You can use that to add weight to your testimony and your own documentation of the hours worked. The law understands that it is not your responsibility to track your hours and that you may not be able to fully remember every hour you worked. Therefore, the law allows you to estimate the amount of overtime work that you did in a typical workweek. You must, though, have a reasonable basis for the estimate and be able to demonstrate reasonable proof for your hours claimed.

Working with an attorney who is experienced in overtime cases can be a valuable asset to your case, regardless of the proof or testimony you have!