Overtime claims arise where there are no records kept of the hours the employee works, or where the records are incomplete and therefore false or are just false, as in fabricated for purposes of litigation. So it can develop that a plaintiff's claim for unpaid overtime may rest on his or her testimony alone regarding the hours he or she worked. Is this enough for a jury to find in the plaintiff's favor? "Yes" answered the Sixth Circuit recently in Moran v Al Basit LLC (June 1, 2015).
The plaintiff, Moran, worked for a couple of different auto repair shops owned by defendant. He claimed that he worked every week 65-68 hours. The defendant offered time sheets purporting to show that Moran worked "exactly thirty hours a week, despite his schedule varying notably from week to week." Furthermore, one of defendant's agent offered that he customarily reviewed security camera footage to verify/determine the employees' work hours, which he then recorded on paper, but, as it happened, these papers could not be located by the time of suit. Moran asserted that their existence had been fabricated in any event.
So Moran's main nearly only evidence was his word. The district judge, Hon. Judith Levy, granted summary judgment to the defendant. The issue before the Sixth Circuit was whether Moran's word alone good enough for a jury to find in his favor:
This appeal raises one simple question: Where Plaintiff has presented no other evidence, is Plaintiff’s testimony sufficient to defeat Defendant’s motion for summary judgment? We hold that it is. Plaintiff’s testimony coherently describes his weekly work schedule, including typical daily start and end times which he used to estimate a standard work week of sixty-five to sixty eight hours. The district court characterized this testimony as “somewhat vague.” However, while Plaintiff’s testimony may lack precision, we do not require employees to recall their schedules with perfect accuracy in order to survive a motion for summary judgment. It is unsurprising, and in fact expected, that an employee would have difficulty recalling the exact hour he left work on a specific day months or years ago. It is, after all, “the employer who has the duty under § 11(c) of the [FLSA] to keep proper records of wages [and] hours,” and “[e]mployees seldom keep such records themselves.” Defendants emphasize the fact that Plaintiff’s testimony is inconsistent with the allegedly contemporaneous timesheets Defendants provided to the court. But these timesheets do not amount to objective incontrovertible evidence of Plaintiff’s hours worked. Plaintiff denies the validity of these timesheets, which were handwritten by Defendants, and contends that Defendants sanctioned his overtime work. Whether his testimony is credible is a separate consideration that is inappropriate to resolve at the summary judgment stage.
