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The AR Group

A Ray of Hope for Employers Dealing with the FLSA

By Victoria Aguilar

The Fair Labor Standards Act (FLSA), also known as the wage-and-hour law, continues to be the bane of many employers. Claims brought by employees for unpaid overtime are the easiest to prove for an employee, and the hardest to defend against by an employer, because by definition, no one has a record of the time worked. ?So the employer is forced to try to prove a negative, unrealistic and problematic task on the best days.

Another exasperating element in an FLSA lawsuit is that the employee?s claim is based on his or her refusal to comply with workplace regulations regarding overtime. ?A recent trend, however, has been the advent of an affirmative defense that proves helpful to employers facing this type of claim.

The United States Court of Appeals for the Tenth Circuit recently announced Brown v. ScriptPro, LLC, , No. 11-3293 (10th Cir. Nov. 27, 2012), which bodes well for employers.? In Brown, the employee-plaintiff claimed that he had worked from home during a four-month period. The employer?s policy, however, required that he record and submit time worked, even when worked from home. Despite being able to do so from his home computer, the employee did not report the time worked. Months later, the employer fired the employee for performance issues, which prompted the lawsuit.

The trial court dismissed the employee?s case, concluding that the employee did not meet his burden to produce evidence of the overtime he worked.? The employee appealed, and asserted that it was the employer who had failed to keep the required time records and, therefore, his burden of proof should be reduced.? The Tenth Circuit disagreed, holding that not only could the employee have submitted the time he worked from home but that he should have done so, since it was required by the employer?s policy.? According to the Court, in these circumstances “where the employee fails to notify the employer through the established overtime record-keeping system, the failure to pay overtime is not an FLSA violation.”? As a result, the employee?s failure to record and report all of the time he worked defeated his FLSA claim.

The Brown v. ScriptPro, LLC decision does not mean that FLSA claims are easily winnable for employers.? Rather, this case proves that an employer is its own best weapon to defeat FLSA claims.? Employers can achieve similarly positive results by:

(1)?? Developing systems and policies for accurately capturing all time worked;

(2)? Clearly communicating those systems and policies to employees;

(3)? Requiring managers and supervisors to enforce those systems and policies; and

(4)? Monitoring time records to evaluate whether they are accurate.

SMART TIP: The most effective way to protect against FLSA claims is to document, document, document?document the policies, document how those policies are transmitted to the employees, and document the enforcement of those policies.