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Increase your chances of winning a wage-and-hour lawsuit

wage-and-hour lawsuit

The Fair Labor Standards Act (FLSA) and Department of Labor (DOL) regulations require employers to track all hours worked so employees can be paid for all the time they spend working. That’s especially true for hourly employees.  What about tracking hours for so-called exempt (also known as salaried) employees who aren’t eligible for overtime pay for hours worked over 40 per week?  Your best bet is to track their hours, too. That’s true even if they work from home, are on the road or otherwise don’t show up in an office to punch a time clock.

If an exempt employee challenges the exemption and sues, and the company can’t produce time records, the court will look to the employee’s records, leaving you defenseless. Track hours even for employees you consider exempt.

Recent case: Greg worked as a field service engineer for six years. His employer classified Greg and other field engineers as exempt employees.

Greg’s job was to install and service three-dimensional printers. He worked independently from his home and was on duty during the week waiting for assignments. When a client requested installation or servicing, a supervisor would inform Greg, who would travel to the client’s location and install or service a printer. Greg did not receive overtime if he worked more than 40 hours in any given week.

Greg sent an email to co-workers, complaining that the company expected the field engineers to work long hours without overtime pay. When the company got wind of the email, it fired Greg for violating its electronic communications policies.  Greg sued, alleging he was due overtime pay because he wasn’t properly classified.

Because his company didn’t track his hours, he testified about what he called a typical day. He said he “typically” worked two to three hours doing preparation work, and “typically” spent three to four hours traveling to locations daily. He also claimed he “typically” spent four to five hours in the evening driving to client sites or nearby hotels, three to four hours at a client’s site, three to four hours writing expense reports, and one to two hours arranging travel time. On top of that, he said he “typically” spent two to three hours each weekend on administrative work.  All told, Greg testified that he “typically” worked 62 to 70 hours a week the entire time he worked for the company.

The court said it didn’t need to decide whether Greg was misclassified because it was clear that Greg didn’t have any detailed records to show how many hours he had worked in any specific week. Using a “typical” week simply wasn’t specific enough. The case was dismissed. (Holaway v. Stratasys, No. 14-1146, 8th Cir., 2014)

Final note: The employer was lucky in this case. The DOL now offers a smartphone app designed to help employees keep track of their time and thus be in a good position to challenge time records. The app is currently only available for iPhones, though an Android version is due out soon. It will track every minute worked and even calculate how much the overtime check should be.

While President Trump’s DOL will likely be less aggressive when it comes to FLSA enforcement, wage-and-hour violations are actually expected to INCREASE in the coming years. The reason: More employees will bring their pay complaints to private attorneys, and state agencies will be stepping up their enforcement.