Last week, the United States Court of Appeals for the Fifth Circuit affirmed the holding of a Texas district court that “an unsubstantiated and speculative estimate of uncompensated overtime does not constitute evidence sufficient to show the amount and extent of that work as a matter of just and reasonable inference.” Ihegword v. Harris County Hosp. Dist., 2014 U.S. App. LEXIS 2669 (5th Cir. Feb. 12, 2014). The plaintiff in the case—a registered nurse—claimed that she often worked overtime without compensation in violation of the Fair Labor Standards Act (“FLSA”). More specifically, the plaintiff claimed her supervisor instructed her to “clock out” and complete her work “off the clock.”
The Fifth Circuit rejected the plaintiff’s claims and affirmed the grant of summary judgment in favor of the employer because, although the plaintiff submitted a declaration in response to the summary judgment motion stating that she regularly worked 12 hours of uncompensated overtime per workweek, her own deposition testimony (as well as the declarations of co-workers) contradicted this assertion. At deposition, Plaintiff testified that she could not remember “how often she worked overtime and that on the days she remember[ed] working overtime, it could have been ‘three or two or one’ hours.” Moreover, the employer had a well-disseminated policy forbidding unauthorized overtime, and time card reports showed that plaintiff rarely worked a full forty-hour workweek. Without specifically relying on the so-called “sham affidavit doctrine,” the Fifth Circuit concluded that the employer’s evidence “soundly refuted” plaintiff’s “unsubstantiated assertions” contained in her affidavit.
Ihegword reinforces the importance to all employers of maintaining specific policies to address reporting hours worked and the importance of systematic record-keeping.