The Fair Labor Standards Act (“FLSA”) defines the term, “employ” in part as to “suffer or permit to work.” This means that employees must be paid for work they were required to perform. In addition, employers will often have to pay employees for “off the clock” work the employer was aware of and allowed the employee to perform. Accordingly, when making a claim for unpaid wages, proving that an employer had knowledge of “off the clock” work is extremely important. It is your right as an employee, and it's important to know the difference between salary and overtime pay. Recently, in Gaines v. K-Five Constr. Corp., the Seventh Circuit addressed this issue. There, an employee made a claim for unpaid wages based on “off the clock” work. The employee provided three justifications to prove his employer knew of and allowed the extra work: 1) handwritten notes indicating an earlier start time than his scheduled start; 2) testimony from a supervisor that [he] was “always at work early”; and 3) his own testimony that supervisors would wait by his truck before his start time. The court rejected all three justifications. Regarding the handwritten notes, the court relied on testimony that only official timesheets were used to calculate hours worked, notations were not analyzed. As to the last two justifications, the court held that a supervisor seeing an employee at work was not enough to prove the employer knew the employee was actually working. This case provides a valuable lesson to employees who are working extra hours without their employer’s express permission. First, always document for yourself and employer that you are working extra hours with specific dates and times. Second, make sure that, if you complete time cards, they accurately record your extra hours worked. Do not assume that being at work is sufficient to establish your employer knew and allowed you to work. If you are working extra hours without being paid, the attorneys at Lebau & Neuworth may be able to help. We are experienced at dealing with claims for unpaid wages. For more information go to: www.lebauneuworth.com.
