Under the Fair Labor Standards Act, all employees are entitled to overtime. But, what if there is a dispute about the overtime? What happens when the employee claims a large amount of overtime, but the employer says there was no overtime?
Supreme Court precedent holds that if an employer maintains time records, then the employer is entitled to a presumption that no overtime is owed. But, if the employer does not maintain those time records, then if the employee presents credible evidence that he worked overtime hours for which he was not paid, then the court may infer that the employee’s records are correct. So, how much evidence does the employee need to obtain the benefit of this inference?
The decision in Flores v. FS Blinds, 73 F.3d 356 (5th Cir. 2023), reminds us that the burden for the employee is low. In Flores, the Fifth Circuit reversed a grant of summary judgment by the lower court. The employees presented their testimony in which they said they averaged 70 hours per week and they presented numerous work orders suggesting a very lengthy work day. Too, an FS Blinds manager confirmed that yes, their work day started at 5:30 a.m. This was enough evidence for the Fifth Circuit.
The panel rejected decisions in other Fifth Circuit cases that were not published. It noted that the lower court mis-construed the testimony of the workers. They did not say they worked 70 hours every week. They simply said they averaged 70 hours per week. See the decision here.