Written by Galen T. Shimoda and Justin P. Rodriguez
One thing people do not normally do is go to work with the belief that they will one day sue their employer. Rather than save critical documents, write journal entries, or send confirming e-mails that encapsulate the pertinent conversations, people just let it all go and hope the next day or week at work will get better. There is absolutely nothing wrong with this optimistic attitude and trying to make the best of a work situation rather than compiling documentation to support your accounts of what is happening. But, sometimes things progress to a point where people have just had enough and/or ultimately decide to bring legal action against their employer after they have separated from the company. In the case where the issue was a failure to pay overtime or other wages due to something like misclassifying you as an exempt employee, the question many people have it simple: how am I going to prove it, if I never kept any of the documents?
The law recognizes that it is the employer's obligation to keep accurate time records. If an employee works of the clock and the employer either directed this to happen or had reason to know it was happening without ensuring that it was accurately documented on the timecard, the case law clearly provides that an employee will be given the benefit of the doubt. A similar situation arises in misclassification cases as employers generally do not make exempt employees track their time. Courts have stated:
- [W]here the employer has failed to keep records required by statute, the consequences for such failure should fall on the employer, not the employee. In such a situation, imprecise evidence by the employee can provide a sufficient basis for damages.
- Although the employee has the burden of proving that he performed work for which he was not compensated, public policy prohibits making that burden an impossible hurdle for the employee. '[W]here the employer's records are inaccurate or inadequate and the employee cannot offer convincing substitutes a . . . difficult problem arises. The solution, however, is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer's failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee's labors without paying due compensation . . . . In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.
Hernandez v. Mendoza, 199 Cal.App.3d 721, 727 (1988) (citations omitted). Thus, your testimony (i.e. verbal recollection) will be enough to support your claims. To assist in this process we typically recommend the person sit down with a calendar print out for the last four years write in the hours each day they believed they work and the basis therefore. For example, someone working in a tax preparer's office may have a large busy season come tax time and the entries near April 15th would likely be larger. Someone working in retail during the Christmas season may similarly experience an uptick in their hours during that time and a Construction worker may have the same experience over the summer when dry season and long days allow more work time. Essentially, think long and hard about when and why you may be busier on some days or time periods than others to re-create your hours worked based on your recollection.
Even though testimony is enough, it is always better to have more evidence than less evidence when proving a claim, so the question then becomes where can one look to potentially prove up their hours. Anything with a date/time stamp should be considered and may include anything from e-mails, text messages, and most any other type of electronic communications. Smart phones may also have applications that an employee uses while at work that can have timestamps associated with it. All should be reviewed and considered when thinking about bringing wage and hour claims. Similarly, although it may not be a timecard, building entry/exit logs, keycard logs, work desk calendars, or personal calendars at your home that notate being at work in any regard may be helpful to prove your hours worked. Sometimes, phones with location services can also provide a way to track your time and location from day-to-day if the feature was turned on during the period in question.
If you believe that you have unpaid wage claims, please contact our office to have your claims evaluated.