An employer’s failure to maintain proper records of hours worked by non-exempt employees results in an evidentiary burden shift in overtime cases. Rather than being entitled to rely on properly maintained records, the employer must rebut the employee’s claim of unpaid overtime provided the plaintiff supports his case with testimony leading to a “just and reasonable” inference as to hours worked. See, e.g., Kuebel v. Black & Decker Inc., 643 F.3d 352 (2d Cir. 2011). While this relaxed evidentiary burden can make claims of off-the-clock work more difficult to defend, the absence of records does not leave an employer without defenses. When a jury rejects an FLSA plaintiff’s claim of unpaid overtime work on credibility grounds, the absence of records is of no moment, as set forth in a new appellate decision from the Eleventh Circuit. Jarmon v. Vinson Guard Servs., 2012 U.S. App. LEXIS 18384 (11th Cir. 2012).

In Jarmon, Plaintiff asserted that he had worked 9 hours on a specific day, bringing his total hours worked for the week to 56, above the 54 for which he was paid. Despite the jury’s rejection of Plaintiff’s assertion, based on its evaluation of Jarmon’s testimony and that of Defendant’s corporate representative, the district judge entered a judgment notwithstanding the verdict, finding “[N]o reasonable jury  [could] find that there wasn't some overtime that was not paid.” In reversing, the appeals court noted that “Nothing in [the seminal Supreme Court burden-shifting case] Anderson v. Mt. Clemens Pottery Co. . . . or its progeny requires a jury to accept a plaintiff's version of events when an employer has kept inadequate records.” Because the jury’s factual finding led to a legally supportable conclusion that Plaintiff was properly paid, the court vacated the district court's judgment as a matter of law on liability, and remanded for a new trial. 

Employers must maintain proper records of hours worked, for a litany of legal and business reasons. However, Jarmon provides a basis to articulate defenses to claims of alleged unpaid working time even if records are not maintained.