Employer Record Keeping Requirements Under The Fair Labor Standards Act And Ohio Law

The Fair Labor Standards Act (“FLSA”), 29 U.S.C.  §201 et seq.,and the Ohio Minimum Wage Standards Act (“MWSA”), R.C. Chapter 4111 et seq., require employers to make and keep employee time records. According to R.C. 4111.08, “[e]very employer * * * shall make and keep for a period of not less than three years a record of the name, address, and occupation of each of the employees, the rate of pay and the amount paid each pay period to each employee, the hours worked each day and each work week by the employee * * *.”

Likewise, 29 U.S.C. §211(c) provides that “[e]very employer * * * shall make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him * * *.  Interpreting the FLSA, the Supreme Court in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1945), opined that “it is the employer who has the duty under § 11(c) of the [FLSA] to keep proper records of wage, hours and other conditions and practices of employment”. Section 29 U.S.C. §211(c) is implemented by 29 C.F.R. §516.2, which lists the exact type of information an employer must maintain, including “[h]ours worked each workday and total hours worked each workweek.” 29 C.F.R. §516.2(a)(7).

Federal courts have interpreted 29 U.S.C. §211(c) and 29 C.F.R. §516.2 to require employers to maintain “adequate,” “proper,” “true” and “accurate” employee time records. Anderson, 328 U.S. at 687; Walton v. United Consumers Club, Inc., 786 F.2d 303, 314 (7th Cir. 1986) (“Section 11(c) of the FLSA, 29 U.S.C. § 211(c), requires every employer to keep an accurate record of the hours worked by each employee”); Dunlop v. Gray-Goto, Inc., 528 F.2d 792, 795 (10th Cir. 1976) (“the duty to keep adequate and accurate records under the [FLSA] rests squarely on the employer”); Kline v. Wirtz 373 F.2d 281, 282 (5th Cir. 1967) (“the Employer has the obligation to maintain accurate time and wage records”); Schwind v. EW & Assoc., Inc., 357 F.Supp.2d 691, 707 (S.D.N.Y. 2005)(same).

The duty to keep adequate and accurate records rests squarely on the employer. White v. Sears, Roebuck & Co., 163 Ohio App.3d 416, 837 N.E.2d 1275, 2005-Ohio-5086, ¶ 17 (10th Dist. 2005).  As the court in White recognized:

[M]aintaining accurate employee time records is integral to the effectiveness of the MWSA and the FLSA. Failure to make and keep accurate employee time records ” ‘can obscure a multitude of minimum wage and overtime violations.’ ” Moon v. Kwon (S.D.N.Y.2002), 248 F.Supp.2d 201, 218, quoting Wirtz v. Mississippi Publishers Corp. (C.A.5, 1966), 364 F.2d 603, 607 (Section 211(c), Title 29, U.S. Code and Section 516.2, Title 29, C.F.R. requirements are not mere technicalities, but rather, ” ‘fundamental underpinnings’ ” of the FLSA). Thus, if employers are not required to make and keep accurate employee time records, the purpose of both the MWSA and the FLSA–to ensure a fair day’s work for a fair day’s pay–will be subverted. A.H. Phillips, Inc. v. Walling (1945), 324 U.S. 490, 493, 65 S.Ct. 807, 89 L.Ed. 1095.

White, 2005-Ohio-5086, ¶ 18.

In Ohio, employers have a constitutional obligation to keep records so that the compensation to which its employees are entitled can be determined. Ohio Const. Art. II, § 34a (“§ 34a). The language of § 34a at issue reads: “An employer shall maintain a record of the name, address, occupation, pay rate, hours worked for each day worked and each amount paid an employee for a period of not less than three years following the last date the employee was employed.” Revised Code §4111.14(A), the implementing legislation for § 34a, provides in part that “[i]n implementing Section 34a of Article II, Ohio Constitution, the general assembly hereby finds that the purpose of Section 34a of Article II, Ohio Constitution is to: *** (2) Ensure that covered Ohio employers maintain certain records that are directly related to the enforcement of the wage rate requirements in Section 34a of Article II, Ohio Constitution.”

When an employer fails in its obligation to keep and maintain the required time-keeping records, the amount of wages including overtime compensation for which an employee is entitled under R.C. 4111.03 and 29 U.S.C. §207 may be established by other means. In Eads v. Axle Surgeons, Inc., 42 Ohio App. 3d 24, 536 N.E.2d 387 (Sandusky County 1987), the court found: “* * * [A]n employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate. * * *” Id. at 27-28, 536 N.E.2d at 390 (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1945)).

Based on this standard, an employee’s affidavit is sufficient documentation to establish the overtime compensation to which she is entitled, provided the affidavit raises a just and reasonable inference as to such sum, and the employer’s evidence to the contrary, assuming there is any, fails to negate the reasonableness of the inferences drawn from the evidence presented by the employee. Ohio Attorney General Opinion Letter, 1994-024 (1994).

Contact Attorney David W. Neel for a free consultation to discuss your overtime or minimum wage case. Call 216-522-0011 to talk with Mr. Neel.

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