Skip to main content

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

Comments

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum,...

San Diego Rolls Back Vaccine Mandate For City Workers

Last Tuesday, the San Diego City Council voted to do away with the vaccine mandate for city employees. The city’s vaccine mandate that was in place required city workers to get the coronavirus vaccine or risk termination.  Perhaps to this surprise of no one, the city’s policy came under fire with 14 employees being terminated and over 100 other employees resigning.  With the coronavirus subsiding, including in Southern California, the San Diego City Council took action. Now, bear in mind, the repeal of the vaccine mandate does not take place immediately. With that being said, the mandate will be repealed March 8th.  I suppose the question now is, what other cities or regions follow San Diego’s lead? For additional information:   https://www.sandiegouniontribune.com/news/politics/story/2023-01-24/san-diego-repeals-controversial-covid-19-vaccine-mandate-citing-drop-in-cases-hospitalizations

NLRB: Former Employee Cannot Be Barred From Work Premises After Filing Wage Suit

MEI-GSR Holdings, LLC - NLRB Facts :  MEI-GSR Holdings, LLC d/b/a Grand Sierra Resort & Casino ("GSR") operated a facility that included a hotel, casino, restaurant, clubs, bars, and a pool which were all open to the general public.  Tiffany Sargent ("Sargent") was briefly employed by GSR as a "beverage supervisor" in December of 2012.  After her employment ended, Sargent continued to socialize at one of the clubs.  GSR had a long standing practice of allowing former employees to patronize its facility and did not prohibit Sargent from doing so.  In June of 2013, Sargent and another employee filed a class and collective action against GSR for alleged unpaid wages, in violation of the Fair Labor Standards Act and Nevada law.  In July of 2014, GSR denied Sargent access to an event at one of the clubs.  GSR followed up with a letter and stated that with the on-going litigation (from the wage suit), it decided to bar Sargent from the premises. ...