By Ted Olsen
Employers learned the value of an up-to-date time keeping system in a recent 10th Circuit decision. Brown v. ScriptPro, LLC, No. 11-3293 (10th Cir. Nov. 27, 2012). In ScriptPro, a Customer Service Operations analyst, allegedly, got permission to work from home at night to store up hours for an upcoming leave. When company later discharged the employee, he filed suit under the Fair Labor Standards Act for overtime. The employer could not deny that the employee had worked overtime – the employee was working from home and no one observed whether he was working. But the employee’s OT claim failed anyway because ScriptPro had a computerized timekeeping system that was accessible to the employee even from home and the employee did not enter his hours worked. The employee also did not keep any other record to document the hours he worked. “Under these circumstances, where the employee fails to notify the employer through the established overtime record-keeping system, the failure to pay overtime is not a FLSA violation,” concluded the Court. Because the company had this up-to-date system, the Court was able to shift the record keeping burden from the employer to the employee, and, in this case, the employee completely failed to keep reliable records.
The balance of the case addressed Family and Medical Leave Act interference and retaliation claims. The employee was fired two days after he requested an FMLA leave, but the employer had overwhelming evidence that it would have discharged him in any case because of his performance and behavior — not completing projects on time, and loudly arguing with his fellow employees, supervisors, customers and his wife in the workplace.