Labor & Employment Law I APRIL 28, 2020

What Kind of Evidence Must an Employee Present to Prove He Worked Unpaid Overtime?

Most employers keep pretty good pay records, but not all do. There can also be issues if someone thought to be an independent contractor claims instead to be an employee. There may be no pay or hours-worked records at all. Then what?

A man named Quoc Viet bought used copiers for Victor Le and Le’s corporation, Copier Victor. Viet shipped the copiers to Vietnam for resale. The relationship later broke down and Viet sued Le and Copier Victor alleging that they wrongly failed to pay him overtime. Viet testified that he typically worked 60 hours per week but offered few details to support his estimate. Viet also alleged that Le and Copier Victor violated the Fair Labor Standards Act by not reimbursing him for certain expenses incurred for the business. The district court found Viet’s testimony about his average workweek too vague and conclusory.

The court described Viet’s testimony about the hours he had worked as “equivocal, conclusory, and lacking in relevant detail.” Viet also provided no written evidence to corroborate his claim that he worked 60 hours per week, despite suggesting that his emails would back up his testimony. The court entered judgment for the defendants. Viet appealed, but unsuccessfully.

The court of appeals first noted some basic principles. An employee who claims that he was not paid this overtime rate has the burden of proving that he performed work for which he was not properly compensated. If he carries this initial burden but cannot recall the precise number of unpaid overtime hours, the employee may seek the work records that the FLSA requires employers to maintain. If an employer has failed to keep these records, the employee may still establish damages by producing sufficient evidence to show the amount and extent of his uncompensated work as a matter of “just and reasonable inference.” This relaxed burden, however, applies to damages questions only after the employee has made a showing that he performed uncompensated overtime work.

The case concerned that threshold question: Did Viet’s evidence permit a reasonable jury to conclude that he worked more than 40 hours per week during any given week between April 2014 and September 2016?

Courts have considered the level of evidence that employees must present to create a jury question over whether they worked overtime. Generally, if an employee describes a specific work schedule exceeding 40 hours, courts have found the testimony sufficient. If, by contrast, the employee testifies generically that the employee worked overtime without providing details to support this claim, courts have found that the testimony falls short. 

Here, Viet claimed that he typically worked 60 hours per week. That bare assertion, though, was too conclusory to create a jury question over whether Viet worked overtime in any given week between April 2014 and September 2016.

Viet did not fill in his general 60-hour estimate with specific facts about his daily schedule. Without Viet’s general estimate, his deposition testimony would leave a jury simply guessing at the number of hours he actually worked in any given week. Le lived primarily in Vietnam, and Viet worked independently and set his own daily hours. Yet he did not provide even basic details about his typical day (such as by saying, for example, that he preferred to work from 8 to 6 or 9 to 8). Additionally, deposition questions seeking to probe his daily or weekly routine were met with entirely conclusory responses. When asked, for example, whether he worked 10 hours per day, Monday through Saturday, he said only, “Whenever like I have time I do it.” When asked the days of the week that he typically worked, he responded, “Almost every day.” When asked how much time he spent working from his house, he answered, “So much time. Every time I got free time.” He offered no estimate of his daily hours or schedule. 

Unable to rely on a usual workweek to establish overtime work, Viet also could not rely on estimates about the time required for his duties. For example, his primary duty was searching online for copiers. He testified that it took him at least 30 minutes to find a machine, yet he conceded that Le never asked him to find 80 copiers in a week (which would add up to 40 hours of searching). Viet gave conflicting testimony about the average search time, noting that some copiers took up to 20 hours to find. He also provided no estimates of the average number of copiers he searched for each day. As the appeals court said, “Was it 10? Was it 100? We do not know.”

The court next considered Viet’s work at the warehouse arranging for shipments. He gave no estimate of the amount of time each week he spent there. He provided another conclusory response, “Sometimes I work at the warehouse” but “not all the time[.]” He also conceded he was not at the warehouse enough to have mail delivered there. Although Viet explained some of the tasks he performed at the warehouse—sweeping the floors, wrapping and hauling machines, waiting for deliveries—the evidence did not show how often he did them.

Viet’s evidence was inconsistent and provided no details which would allow a jury to determine that he worked beyond 40 hours in any specific week.

Viet had the burden to prove that he worked overtime during every week for which he sought overtime pay. Le and Copier Victor were entitled to summary judgment if the record taken as a whole could not allow a rational jury to conclude that he worked overtime. Viet’s conclusory statements about his overtime work would not allow a rational jury to reach that conclusion because Viet failed to establish the existence of an element essential to his case, and Le and Copier Victor had no duty to present evidence negating the overtime work.  

Viet argued that the district court created a “seemingly impossible standard” for employees to withstand summary judgment over whether they worked more than 40 hours per week. The appeals court disagreed. Employees need not recall their schedules with perfect accuracy in order to survive a motion for summary judgment. Rather, they must only coherently describe their day-to-day work schedules or the time it takes to complete their duties so that a rational jury could find that they worked more than 40 hours in the weeks claimed.

Viet’s failure to show that he worked overtime also doomed his claim that Le and Copier Victor failed to reimburse him for telephone expenses incurred while pursuing their joint business. Because Viet did not present sufficient evidence that he ever worked overtime hours, he could not show that these expenses cut into any overtime pay that he was entitled to receive. The court of appeals affirmed summary judgment for the defendants.

The case is VIET v. LE, 951 F.3d 818 (6th Cir., 2020).