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Estimating Amount of Overtime Worked Can Doom FLSA Claim


Viet v. Le; Copier Victor, Inc. - Sixth Circuit Court of Appeals


Facts:  Quoc Viet (“Viet”) worked for Victor Le (“Le”), owner of Copier Victor, Inc. (“CV”).  CV exported copiers to Vietnam for sale in that country.  Viet’s job included locating copiers in the United States for CV, in which he was paid a set rate.  Viet was classified as an independent contractor and Le did not track Viet’s hours worked.

After the working relationship between the parties soured, Viet filed a Fair Labor Standards Act (“FLSA”) lawsuit against Le and CV on the grounds that he had been denied overtime pay, in violation of the FLSA.  In district court, Le and CV moved for summary judgment on Viet’s claim.  The district court assumed Viet provided services/work as an employee, for purposes of the FLSA, but held that Viet’s evidence that he worked more than 40 hours in a week was insufficient to survive summary judgment.  Viet estimated his work hours and only had a conclusory statement that he worked more than 60 hours in a week.  Based upon these estimates, and the absence of actual documentation or “hard” facts, the district court granted Le and CV’s motion for summary judgment. Viet subsequently appealed.

Holding:  The Sixth Circuit Court of Appeals recognized that the FLSA provides that an employer is to pay an employee time and a half for any hours worked over 40 in a week.  Notably, the burden of proof is on the employee to show he (or she) performed work for which they were not properly compensated.  If an employee can meet this burden but cannot establish the exact hours worked, they can rely upon the work hour records that the employer maintains, per the FLSA requirement.  The United States Supreme Court has recognized that if an employer has failed to maintain its duty to keep records, an employee may still establish damages by “produc[ing] sufficient evidence to show the amounts and extent of [his uncompensated] work as a matter of just and reasonable influence.  Of note, this “relaxed” burden applies only to the question of damages under the FLSA which occurs only after an employee has met its initial burden to “establish[] liability” by showing that the employee performed uncompensated overtime work.”

Based upon the facts in the record, the Court of Appeals held that Viet failed to support his conclusory statement that he worked approximately 60 hours a week with “specific facts” about his schedule.  Notably, the Court recognized that Viet failed to 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.”  Even so much as Viet relied upon estimates for time spent on specific tasks, the Court held that his testimony was inconsistent and conclusory.

Judgment:  The Sixth Circuit Court of Appeals upheld summary judgment in favor of Le and CV on the grounds that Viet’s estimates of his hours worked and conclusory statements about the work he performed was insufficient to meet his burden under the FLSA to establish he performed work in which he was not properly compensated.  

The Takeaway:  Documentation, documentation, documentation.  I cannot repeat that word enough and this case serves to illustrate the point.  As the district court and Sixth Circuit Court of Appeals recognized, Viet’s undoing was the fact that he only had broad, conclusory, unsubstantiated estimates of his work hours and work performed.  There appeared to be nothing in the record that Viet had produced to support his claim (again, beyond his estimates.)  Without a contemporaneous record, spreadsheet, time log, journal, notes, etc., Viet simply could not meet his burden.  Had he produced some tangible documentation to supplement his statements (putting aside that they were simply estimates), Viet might have been able to survive the summary judgment phase of litigation.  I would suggest employees use this case as a reminder that if you foresee filing a lawsuit against your employer (or simply for good practice to document your work environment), keeping a record (preferably a contemporaneous one) might come in handy when you need to produce tangible documentation and need more than “best guesses” or estimates to try and prevail in your case.

Majority Opinion Judge:  Judge Murphy

Date:  March 10, 2020

Opinion:  https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0076p-06.pdf

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