You can’t substitute employee say-so for accurate time records, unless you’re the employee.

Lopez v. Asmar’s Mediterranean Food, Inc., Civil Action No. 1:10cv1218 (E.D. Va. January 10, 2011). Lopez sued her employer, Asmar’s Mediterranean Food, Inc., alleging that her employer failed to pay her overtime in violation of the Fair Labor Standards Act (“FLSA”). After some discovery, the employer filed a motion for summary judgment, arguing that there was no real issue regarding either the hours that Lopez worked or regarding the sufficiency of her pay. Lopez disagreed.

The FLSA generally requires that employers must pay employees for work over forty hours a week at one and one-half times their regular wages. Courts consider the FLSA as a remedial and humanitarian statute, designed to protect workers, and interpret the statute broadly in order to reach these goals. One important aspect of the FLSA is that employers governed by the statute must keep records of each employee’s wages, hours, and other conditions and practices of employment, including accurate records of hours worked each workday and workweek by each employee.

An employee who claims that her employer has violated the FLSA bears the burden of proving the employer’s violation. The employer’s time records may play a part in this proof or the employee may assert that the employer’s records are not accurate. In this case, Lopez alleged that she worked 62.5 hours a week. For its part, Asmar’s Mediterranean Food, Inc., offered no evidence that it had any records of the time Lopez had actually worked. In this situation, where the employer’s records are inadequate or inaccurate, the burden of proofs shifts from the employee to the employer to come forward with evidence showing the precise amount of the work performed or some evidence that negates the reasonable inference that the employee was not paid overtime.

Asmar’s Mediterranean Food, Inc., followed the second route and sought to negate Lopez’s evidence. In discovery, Lopez had identified some similarly situated employees who could corroborate the hours she claimed to work, which were from 8:00 a.m. to 9:00 p.m., Monday through Friday. The employer interviewed each of the identified employees and offered affidavits from them stating that Lopez had only worked from 8:00 a.m. to 5 or 6:00 p.m.

Lopez argued, however, that the affidavits were only from current employees, and that the employees may be subject to bias or coercion from the employer. As a result, argued Lopez, these affidavits should be discounted. The court agreed. (In part, the court also agreed with Lopez’s argument on this point because she had not yet had the opportunity to take the depositions of these witnesses.) At least at this stage of the proceedings, the court found that these other employees’ statements were insufficient to negate the inference that Lopez had not been properly paid overtime.

Another matter addressed by the court was the manner in which an employee who is paid a flat weekly sum is to calculate her equivalent hourly and overtime pay rates. Looking to the Code of Federal Regulations, the court noted that hourly and overtime rates are calculated by dividing the flat weekly pay by the number of hours worked in the week. In Lopez’s case, this quotient was reached by dividing $550/62.5 hours, equaling $8.80 as Lopez’s hourly rate of pay. Lopez’s overtime rate of pay was therefore $13.20 per hour ($8.80 x 1.5). For each week, the court noted, Lopez should have been paid $8.80 for each of the first forty hours worked, and $13.20 for each hour over forty hours. At 62.5 hours a week, Lopez’s overtime shortfall was therefore $99 a week.

The employer argued that Lopez admitted that her hourly rate of pay was $8.80. From this, the employer argued that it was a matter of simple mathematics to conclude that, for a forty hour week, Lopez would be paid $352.00, leaving $198.00 as “additional pay” to defer about 15 hours of overtime at the rate of $13.20 per hour. The court did not accept the employer’s math, holding that the hourly rate was derived from the number of hours worked: had Lopez worked 50 hours a week instead of 62.5, Lopez’s hourly rate – and overtime rate – would have been higher. Accordingly, the court rejected this argument.

The court denied the employer’s motion for summary judgment.

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