The Sixth Circuit recently issued a decision in Moran v. Al Basit LLC., No. 14-2335 (6th Cir. June 1, 2015), which will make it more difficult for employers to defeat even vague allegations of wage and hour violations in collective actions brought under the Fair Labor Standards Act (“FLSA”).
For years, like many other courts, the Sixth Circuit required plaintiffs to provide more than mere bald assertions that they were not compensated for off-the-clock work. See United States DOL v. Cole Enters., 62 F.3d 775 (6th Cir. 1995), Chao v. Akron Insulation & Supply, Inc., 184 Fed. Appx. 508 (holding that plaintiffs must produce sufficient evidence to establish the amount of uncompensated work “as a matter of just and reasonable inference”),McCrimon v. Inner City Nursing Home, Inc., No. 1:10-cv-392 (N.D. Ohio Sept. 30, 2011). Until recently, the Sixth Circuit found that an FLSA plaintiff’s testimony on its own created a genuine issue of fact only where the employer failed to provide time records. See Keller v. Miri Microsystems LLC, 781 F.3d 799, 816 (6th Cir. 2015).
In Moran, the plaintiff vaguely alleged his work schedule and typical start and end times and asserted that he worked an average of sixty-five to sixty-eight hours per week. However, he provided no other corroborating evidence that he performed uncompensated work. In contrast, the employer produced timesheets and paystubs showing that the plaintiff almost never worked more than thirty hours per week, let alone over forty hours so as to warrant overtime compensation. The evidence showed that, out of the ninety weeks that the plaintiff was employed, he worked exactly thirty hours all but five times. The employer further submitted an affidavit from the plaintiff’s manager, who stated that the plaintiff never worked over thirty hours in a week and, at times, he even left work early before completing his scheduled workday.
Despite the voluminous evidence refuting the plaintiff’s allegations, the Sixth Circuit held that “timesheets do not amount to incontrovertible evidence of Plaintiff’s hours worked. Plaintiff denies the validity of these timesheets . . . Whether [Plaintiff’s] testimony is credible is a separate consideration that is inappropriate to resolve at the summary judgment stage.” The Sixth Circuit reversed the district court’s award of summary judgment in the employer’s favor and remanded the case for further proceedings. In reaching this decision, the Sixth Circuit significantly lightened its previous – and reasonable – standard that a plaintiff’s bare allegations alone cannot create a genuine issue of fact. Going forward, under the Sixth Circuit’s holding in Moran, a plaintiff can offer nothing more than his or her subjective, uncorroborated, and vague testimony, and even in the face of documentary evidence to the contrary, such allegations may be sufficient to proceed to trial.
The Sixth Circuit’s decision in Moran marks a substantial change in the wage and hour landscape, both in states within the Sixth Circuit and – because FLSA decisions are often cited from around the country – potentially beyond. Employers who go to painstaking lengths to properly document their employees’ hours may nonetheless be forced to proceed to trial simply because the employee testifies that the timesheets are false. At a minimum, a best practice is for employees to sign or otherwise personally verify the accuracy of their timesheets. Without these measures, at least under Moran, timesheets may not be worth the paper they’re written on.