Wednesday, August 19, 2015

Another viewpoint on overtime for undocumented work time

In Garcia v. SAR Food of Ohio, an Ohio federal court rejected an employer’s attempt to dismiss an off-the-clock wage-and-hour claim, because, even though the plaintiff had not reported un-clocked as “working time,” a fact issue existed over whether the employer should have known that the employee was nevertheless performing such work without compensation.

Now, an Illinois federal court has considered nearly the identical issue, a reached the opposite result. In Roberts v. Advocate Health Care, a nurse alleged that she had worked between 8 and 12 hours of unpaid overtime each week. Her employer, however, argued that she was responsible for submitting her own timesheets and that it paid her consistent with her own written representations as to how many hours she worked each week.

The federal court rejected the employee’s counter-argument that “she was performing uncompensated overtime work,” and that her supervisor, Magurany, “knew or should have known about that work,” and dismissed this off-the-clock claim.

Magurany supervised between 45 to 50 employees in multiple departments. Roberts contends that when Magurany reviewed employee time cards, she should have noticed that Roberts' time cards did not reflect time spent at the alleged post-shift meetings. This constructive knowledge argument is speculative. It rests on three assumptions: (1) Magurany knew that Roberts was off the clock during the purported post-shift meetings; (2) Magurany knew that Roberts routinely failed to correct her time cards to reflect time spent at those meetings; and (3) when Magurany reviewed Roberts' time cards at a later date, she was able to detect that Roberts' time cards shorted Roberts for time spent at the meetings…. The fact that something is theoretically possible is not enough to create a triable issue of fact….

This is especially true given that Advocate had multiple mechanisms by which employees could correct their time. Roberts used these mechanisms on multiple other occasions….

Moreover, Roberts never provided actual notice by complaining to Magurany or any other supervisor about any of the unpaid overtime she now claims that she worked….

How does an employer reconcile Garcia and Roberts within its own pay practices? The short answer is that you don’t. Different courts often reach different results on similar issues, and, until higher courts pass judgment, the issue remains unsettled. For now, if you are in Northern Ohio, Garcia is your controlling precedent and you need to pay if you know, or should know, of the undocumented work time. If you want to take a more aggressive stance and challenge the issue, you have Roberts on which to hang your hat. That challenge, however, will raise the issue of whether you are committing a willful violation of the FLSA (with its longer statute of limitations and liquidated damages) by intentionally withholding pay from an employee you know has performed work. The safer course of action is the Garcia holding, which is the path down which I would guide you.