Q: I WORK at a retail store and regularly put in 9 to 10 hours every day. I have a short meal period of 15 minutes. I am paid a fixed monthly salary. I know I am entitled to extra pay but we have no Bundy clock or time sheets that show when I begin and end my work. Even if my employer does not have records of my work hours and meal periods, can I still make a claim for additional wages? How do I prove my claims without records?
A: Yes, you can still claim for unpaid wages even if your employer did not keep records of your work hours. The law protects employees. If the employer fails to comply with the law to keep time records, the law allows alternative methods of proving one’s hours worked. It may require creativity but our firm has done it in many cases.
For example, testimonies of fellow employees are helpful. Other documents that indirectly show the start and end of your day may be available. There may be parking records, security logs, computer logs, telephone logs, or even designated daily work schedules that show expected work hours of more than 8 hours per day. Our firm has subpoenaed records from other sources like building managers and parking companies. If the employee kept a contemporaneous personal diary of his or her hours worked, these may be admissible as well.
Employers are required to maintain “payroll records showing the hours worked daily by and the wages paid to employees.” Employers must keep accurate information, including time records showing when the employee begins and ends each work period, meal periods, split shift intervals, and total hours worked.
The law does not permit a practice where it is simply assumed that employees receive a meal period unless the record is maintained. Meal periods must be recorded unless all operations cease during the scheduled meal periods. Employers must also keep records of sleep periods where such periods occur during a 24-hour shift and the sleep period is not paid by the employer.
If the employer fails to maintain accurate time records, the employee’s testimony or other evidence concerning his or her hours worked is sufficient to prove a wage claim. The burden of proof is then on the employer to show that the hours claimed by the employee were not worked.
Because the employer has the duty to keep proper records of hours worked, if the employer fails to produce such evidence, the court may award damages to the employee, even though the award is only an estimate of the actual damages.
Even if an employee’s offer of proof of the number of overtime hours would cause the court to guess at the amount of damages, the employee is still able to meet the burden of proof. “Once an employee shows that he performed work for which he was not paid, the fact of damage is certain; the only uncertainty is the amount of damage.” If such is the case, it would be unjust to deny all relief to the employee and relieve the employer from making any restitution for its wrongful act. In other words, the employer cannot escape paying simply because the employee cannot prove the exact amount to be paid.
Apart from paying the employee the unpaid wages due, the employer is also liable to pay legal interest, penalties, and attorneys’ fees. Employees should not give up on their wage claims just because the employer did not keep records. Being resourceful can go a long way in obtaining the wages rightfully due to you.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088.
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