How Do I Prove The Hours I Worked When My Employer Doesn't Keep Records?

time clock

An AOL Jobs reader asks:

Good afternoon,

My wife worked at a local shop for almost two years and the owners never paid her once for her overtime. She literally had not taken but about five lunch breaks during this time frame (hourly employee) and was sometimes kept several hours after closing time for work related projects and meetings. Our dilemma is that they don't have any method in place to log worked hours (time clock, time sheet, etc.) and when asked about her overtime they gave her a $100 bill and said "here, let's not worry with the overtime issue." My question to you is this: without proper documentation, how are we supposed to fight for reimbursement of this overtime?

Thank you in advance!

If your employer doesn't keep good time records, all is not lost. First of all, it's the employer's duty to keep accurate records of your time. Here's what the Department of Labor says about what records the employer is expected to keep:

What Records Are Required: Every covered employer must keep certain records for each non-exempt worker. The [Fair Labor Standards] Act requires no particular form for the records, but does require that the records include certain identifying information about the employee and data about the hours worked and the wages earned. The law requires this information to be accurate.

The following is a listing of the basic records that an employer must maintain:

1. Employee's full name and social security number.
2. Address, including zip code.
3. Birth date, if younger than 19.
4. Sex and occupation.
5. Time and day of week when employee's workweek begins.
6. Hours worked each day.
7. Total hours worked each workweek.
8. Basis on which employee's wages are paid (e.g., "$9 per hour", "$440 a week", "piecework")
9. Regular hourly pay rate.
10. Total daily or weekly straight-time earnings.
11. Total overtime earnings for the workweek.
12. All additions to or deductions from the employee's wages.
13. Total wages paid each pay period.
14. Date of payment and the pay period covered by the payment.

If your employer doesn't comply with this legal duty, what can you do? You can give your best estimate of the hours you worked and, assuming you have some reasonable basis for your estimate, the courts will likely rely on this. Here's what I suggest you do if your employer doesn't keep accurate track of your time:
  • Keep your own records: If you write down (and keep the records at home or in a pocket, briefcase or purse where your employer can't take them) every day what time you arrived and left work, that's something the courts would consider a pretty reliable record. Of course, if the employer could prove otherwise, such as entry and exit records from the building, cameras, login and logout information on computers, then they may still win, so make sure your records are scrupulously accurate.
  • Reconstruct your schedule: If you didn't keep records, you can do your best to figure out what your schedule was. If, for instance, every Friday you had to stay late to do extra work to shut down the office for the weekend, and your normal time to leave was 7:30 instead of 5:00, write it down. If you had to come in 15 minutes early every day but weren't allowed to clock in until 8:00, write it down. Do your best to figure out how many extra hours you worked and why.
  • Look at your calendar: If you had certain days you wrote in your calendar or diary to work on weekends or an evening special event, then note those dates and give your best estimate of the extra hours you worked.
If you think you aren't being paid for all hours worked, or aren't being paid overtime, then contact an employee-side employment attorney in your state about how to prove the time you should be paid and your rights. You can also contact the Department of Labor, but I'd suggest putting together your best estimate of hours before you contact them for help. In a situation where the employer didn't keep good records, a lawyer may be your best bet.

If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs.

Please note: Anything you write to me may be featured in one of my columns. I won't be able to respond individually to questions.
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