Wage cases are won or lost on evidence, not outrage. Employees often call me upset – and rightly so – about being underpaid and shorted by their employer. While I understand the frustration, my first question will always be: “what evidence can you get?” But what counts as unpaid wage evidence, from a legal perspective? This article will help explain the practical art of evidence-gathering in an unpaid wage or overtime case. It will also explain why, sometimes, an employer’s total lack of recordkeeping can actually work in your favor.
Legal Standard
With respect to keeping timesheets and pay records, the law is favorable to employees. The Fair Labor Standard Act (FLSA) requires employers to keep accurate employment records for all their workers — 29 U.S.C. § 211(c). The FLSA regulations set forth a detailed list of precisely what records must be kept, and for how long. This includes, of course, records of hours worked, pay rates, total sums paid, and similar requirements.
Here is the interesting part — if an employer fail to keep full or accurate records, the employee can prove his case by a reasonable estimate, supported by his own testimony and whatever documents he might have. As far back as 1946, the Supreme Court has held that employees can prove unpaid wages through a “just and reasonable inference” in the seminal case of Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). That principle remains valid today, and courts regularly rule in favor of employees under Mt. Clemens. Although the employer technically has a right to rebut employee evidence under this standard, from a practical perspective their hands are usually tied – remember, it’s the employer who didn’t keep accurate records in the first place. See Dep’t of Labor v. Five Star Automatic Fire Prot., 987 F. 3d 436 (5th Cir. 2021).
Practical Evidence Checklist
At the same time, it’s always better to have your own documents rather than relying solely on the Mt. Clemens standard. And it’s better to start gathering that evidence sooner rather than later. The exact types of relevant evidence differ from person to person (and depending on job type), but common examples include:
- Personal notes.
- Emails or text messages about shift times, or showing off the clock work/
- A personal calendar showing start and stop times or appointments.
- Offer letters.
- Work schedules – either by picture or screenshots.
- Pay stubs or direct deposit records.
- Employment handbooks or pay policies.
- Employer memos regarding pay or timekeeping.
- Commission or bonus policies and agreements.
- Complaints or other communications with supervisors or HR about unpaid time or other pay disputes.
Even informal documents, like text messages showing you worked through lunch or stayed late to finish tasks, can help establish a pattern that fills gaps in the employer’s records.
Good evidence gathering is careful and organized. Start by collecting all written records you already have, and organize them chronologically. Save all copies of pay stubs, timesheets, W2 forms, and schedules. The goal is not total perfection; it is to gather enough proof to reasonably show the hours you worked and the wages you should have received. In wage and hour law, cases are decided on the strength of the evidence, not on perfect paperwork. A modest claim with good documentation can be as compelling as a large claim.
There are also smartphone apps available that can assist you with these tasks, including apps that allow you to independently track your own time without having to rely on your employer’s word for it. Without recommending or suggesting any particular app, some apps that people use are: Just the Tips; Tip Keeper; Time Clock, and Working Hours. There are many others. By all means, search around and find the app that looks right for your situation. The Department of Labor also offers an “official” time tracking app which you can try out. Of course, these apps only work if you use them consistently. Simply downloading an app, and using it once or twice, will not help. You have to be diligent about tracking your hours or tips on a day in, day out basis.
What Not to Do
One final, critical point – do NOT, under any circumstances, attempt to take documents which you have no right to access. Only gather documents which you are permitted to have in the first place. If necessary, we can always obtain additional unpaid wage evidence after the case is filed, through discovery, subpoena, or court order. You should never take it upon yourself to gather your employer’s confidential or protected documents.
Call Today
If you believe your company owes you unpaid wages, commissions, or overtime, click here to contact New Orleans employment lawyer Charles Stiegler today, or call now at (504) 267-0777. The consultation is free.