Affirming the dismissal of an employee’s claim for “off the clock” work under the federal Fair Labor Standards Act, the U.S. Court of Appeals for the Tenth Circuit has ruled that the employee’s failure to use his employer’s timekeeping system while working remotely was fatal to his claim for unpaid overtime. Brown v. ScriptPro, LLC, No. 11-3293 (10th Cir. Nov. 27, 2012). The Court noted that there was “no failure” by the employer to keep accurate time records; rather, the employee failed to comply with the employer’s timekeeping system. 

Background

Frank Brown worked for ScriptPro, LLC, an automated prescription drug dispensing systems manufacturer, as a non-exempt Customer Service Operations analyst from March 2007 until November 21, 2008. During Brown’s employment, Tammy Becker and Mark Eaker supervised Brown. ScriptPro’s employee handbook required employees to turn in time sheets recording hours worked. 

During the period from July 2008 to October 2008, Brown claimed he worked approximately 80 hours from home in order to take time off for the birth of his second child in October 2008. Brown did not record the time he worked from home in ScriptPro’s timekeeping system. In October 2008, Brown requested and was granted paid time off. From October 27, 2008 through November 7, 2008, Brown was out of the office, although he claimed that he worked from home during the second week he was out. On November 19, 2008, Brown e-mailed Becker that he had an arrangement with Eaker whereby he would work from home in order to save up hours for later use. Brown wanted to use some of that time to leave early the following day for his wife’s doctor appointment. Later that day, Becker informed Brown that such an arrangement would not be allowed. On November 21, 2008, ScriptPro terminated Brown for various, unresolved performance issues.

Brown sued ScriptPro for unpaid overtime under the FLSA for 80 hours of “off the clock” work that he performed at home between July and October 2008. ScriptPro asked the district court to dismiss Brown’s claims, and the district court did so, finding Brown failed to show, by justifiable or reasonable inference, the amount of overtime he worked. Brown appealed.

Applicable Law

The FLSA provides that qualified employees shall be compensated for time worked in excess of 40 hours per week. To succeed on an FLSA claim for unpaid overtime, the employee must prove that he performed work for which he was not properly compensated. Baker v. Barnard Constr. Co., Inc., 146 F.3d 1214, 1220 (10th Cir.1998). The employee must offer sufficient evidence “to show the amount and extent of that work as a matter of just and reasonable inference.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946). The FLSA also requires employers to maintain accurate time records. If an employer fails to maintain accurate records, a court may relax the plaintiff’s burden to show the amount of overtime worked. 

“Off the Clock” Claim

Although the appellate court agreed that Brown had proven he had worked from home, the Court rejected his claim for unpaid overtime because he failed to demonstrate “by justifiable or reasonable inference” the amount of overtime he worked. Brown argued ScriptPro was responsible for keeping time accurate records and failed to account for the time he worked at home. Consequently, Brown asserted he could not be required to prove the exact amount of overtime he worked. The Court rejected Brown’s contention.

The Court found that Brown’s decision not to enter any of the hours he allegedly worked in ScriptPro’s timekeeping system, which he could have accessed remotely, was fatal to his claim. The Court noted, “Brown easily could have entered his hours; in fact, he was required to do so.” However, Brown failed to use the system ScriptPro put in place to ensure that its employees were paid for all hours worked. Brown also did not keep any other records documenting the hours he allegedly worked. Therefore, the Court concluded, “There was no failure by ScriptPro to keep accurate records, but there was a failure by Brown to comply with ScriptPro’s timekeeping system.” Under such circumstances, Brown’s FLSA claim failed.

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Brown highlights the need for employers to have clearly articulated and duly enforced policies regarding the recording of work time, particularly if the employer permits employees to work remotely. Employers should consider training all employees regarding their timekeeping policies during new employee orientation and annually thereafter. Employers should train their supervisors regarding their responsibility to enforce these policies, including addressing an employee’s failure to comply with the policy.