The federal regulations to the FLSA impose recordkeeping burdens on employers (see, e.g., 29 CFR § 516.2) but those same records are most vital in assisting employers’ defense of claims of unrecorded work hours (“off the clock” claims). That utility was exemplified this week by a new decision from the Court of Appeals for the Tenth Circuit, Brown v. Scriptpro, 2012 U.S. App. LEXIS 24364 (10th Cir. 2012).
In Brown, the parties did not dispute that the plaintiff, a non-exempt employee, had performed some unrecorded work remotely, and the district court concurred that such off-the-clock work was performed. However, the lower court also found that the plaintiff failed to establish “the amount of [unpaid] overtime by justifiable or reasonable inference.” In affirming that ruling, the Tenth Circuit observed that “[i]t is undisputed that ScriptPro keeps accurate records, and employees can even access the timekeeping system from home. Mr. Brown easily could have entered his hours; in fact, he was required to do so. There was no failure by ScriptPro to keep accurate records, but there was a failure by Mr. Brown to comply with ScriptPro’s timekeeping system.” Thus, under such circumstances, Plaintiff’s failure to comply was fatal to his later claim of off-the-clock work.
Brown highlights the need for employers to have clearly articulated and duly enforced policies regarding the recording of work time.