FLSA overtime claims can be tremendously difficult to defend, particularly when the plaintiff-employees don’t “recall” when or how many hours they allegedly worked. Many employers are shocked when they learn that the plaintiffs can pursue their claims without making any real proffer of such critical evidence. A decision from the Eighth Circuit last month represents a significant step in the right direction—and away from the shadowboxing that many FLSA lawsuits can involve.
The plaintiff-police officers were given flextime or time off in lieu of overtime compensation. Neither the officers nor the city tracked the accrued flextime, which the officers alleged would be lost if not used within a short period. The officers filed a collective action under the FLSA.
In response to the city’s written discovery requests, the officers did not identify the number of uncompensated hours or the amount of money that they claimed to be owed. After discovery closed, the city moved for summary judgment, arguing that the officers failed to satisfy their evidentiary burden. In response, the officers submitted affidavits in which they offered precise estimations, week by week, of the hours they claimed to be owed.
The district court granted summary judgment to the city, dismissing the case. As the basis for its decision, the court found that the officers had unjustifiably failed to comply with their discovery obligations and that, without the affidavits, the officers failed to satisfy their burden of production by showing “the amount and extent of their alleged overtime work.”
On appeal, the Eighth Circuit upheld the decision of the district court. The officers argued that the relaxed evidentiary standard should be applied, which would excuse their failure to show the unpaid time during discovery. This argument was based on the undisputed fact that the city had failed to keep time records. The Eighth Circuit rejected this argument, finding that the relaxed evidentiary standard applies only “where the existence of damages is certain.” Here, the officers’ failure to prove the extent of the allegedly unpaid overtime meant that they had not proved any damages and, therefore, the lesser standard was not triggered.
This case represents another glimmer of hope for employers facing FLSA lawsuits. In many respects, defending an overtime suit can be a lot like shadowboxing, especially if the plaintiff-employees “decline” to specify the basis for their claim. This decision by the Eighth Circuit imposes a definite burden on the plaintiff-employee to produce some actual evidence of their alleged damages.
Carmody v. Kan. City Bd. of Police Comm’rs, No. 12-3051 (8th Cir. Apr. 23, 2013).