“Smoking Guns” to Proving a California Overtime Pay Case
It is not uncommon for employees to become discouraged or even hopeless when it comes to proving that overtime pay is due. Since in many cases, employers do not keep time records or the employee is misclassified; i.e. told they are salaried (exempt) and not entitled to overtime pay.
First, the employee must understand that pursuant to Nordquist v. McGraw-Hill Broadcasting Company (1995) 32 Cal.App.4th 555, 562, EVERY EMPLOYEE IS ENTITLED TO CALIFORNIA OVERTIME PAY unless they fall under an exemption; ie. administrative exemption, executive exemption, professional exemption, salesperson exemption, or computer software exemption, or another wage order preventing them from receiving overtime pay. The employer bears the burden of proof and it is the employer’s responsibility to prove the employee is not entitled to overtime pay.
The second important principle to understand is that California employers,not employees, must carry the burden of time keeping for all non exempt (employees entitled to overtime pay). For example, Anderson v. Mt. Clemens Pottery Co., (1945) 328 U.S. 680, supports this assertion. In the event the employer did not keep time records, the courts will rely on the reasonable testimony of the employee.
That said, should the employer produce a witness or other documentation that refutes the employee’s testimony, the burden of proving overtime, reverts back to the employee. This is where execution of the “Smoking Gun” strategy below is critical.
STRATEGY:
It is critical to immediately begin gathering information if you have an overtime pay claim.
- Witnesses. Gather witnesses that can testify to the duties you performed and the hours you worked. Your California labor law attorney may wish to get them to sign a declaration if possible.
- Electronic footprints. Time clock punch ins and outs, if accurate are the easiest to show time worked. When unavailable, obtain computer logins that show work start and stop times. Also, a garage pass, suite key, register key, on site security camera tape may show time worked. Your California labor law attorney can subpoena all of this information.
- Phone and electronic communications. Your phone bill, cell phone bill, home computer, pda or office computer, are invaluable sources of showing time worked outside of normal working hours.
- Vendors and outside associates. When all else fails, get declarations from security personnel, and vendors who witnessed you working early or staying late.
- Memos, handbooks and performance evaluations. Assemble memos or check in the employee handbook to see if it reveals an employer’s attitude towards overtime work; i.e. Memos that make statements such as: “Stay until all work is done” or “do whatever it takes.” While this may not be enough to prove your overtime case, this information can help paint a picture of the employer’s attitude towards overtime to a judge or jury. Also, performance evaluations sometimes praise an employee for working excessive hours.
In addition to proving your case in court, if necessary, in many instances the gathering of these “smoking guns” may help to bring your case to a faster settlement without going to trial.
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