Employment Law Daily Employee advances OT claims even though facial recognition system reflected 40 hours weekly
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Wednesday, December 12, 2018

Employee advances OT claims even though facial recognition system reflected 40 hours weekly

By Marjorie Johnson, J.D.

Although an adult medical daycare center’s facial recognition system reflected that an employee did not work more than his standard 40-hour week and he admittedly never asked to work overtime, triable issues existed as to whether he actually worked the overtime hours he claimed and whether the employer actually or constructively knew about it, a federal district court in Maryland ruled, denying summary judgment against him on his overtime clams under the FLSA and state law. In addition to the employee’s own testimony, his wage form provided specific details, three former coworkers attested that they saw him working late, and his supervisor admitted he did not know if the employee stayed late since he didn’t wear a watch (Chen v. Royal Garden Adult Medical Daycare Center, Inc., December 6, 2018, Gallagher, S.).

Extra duties. The employee, an Asian male who could not read English, was hired to work as a driver for the center in March 2015. He claimed, however, that he performed additional duties, including shopping for food and supplies, preparing and serving food to customers, and serving as the center’s “handyman.” His standard hours of work were 7:20 a.m. to 2:30 p.m., Monday through Saturday, and while he originally received an hourly wage, his employer started paying him a weekly salary in the fall of 2015.

Facial recognition system didn’t show overtime. The center used a facial recognition system (FRS) to track workers’ hours, which took their photos upon arrival and departure. The employee’s resulting timesheets reflected his standard hours, but he claimed he worked well over 40 hours each week. Specifically, he reported he worked approximately 44 hours of overtime from March 17 to April 18, 2015; 22 hours of overtime from April 19 until May 31, 2015; and 22 hours of overtime each week from June 1, 2015 to June 29, 2016. After his employment ended in July 2016, he filed a wage claim with the Maryland labor department alleging over $49,000 in unpaid overtime wages and this lawsuit followed.

Seen working late. Beyond one single instance in which he was undisputedly granted overtime for driving customers to an event, he never asked for overtime pay, nor did the center’s owner or his supervisor ever ask him to work overtime. However, he claimed that he often had to stay at the center to make fritters for the following day since he “was given the task” and “wanted to do it well.” He also claimed that the owner saw him working one night beyond 9:00 p.m. and instructed him to make sure the facility was locked up after he left. Additionally, three former coworkers attested that they saw him working after 4:00 p.m. on several occasions.

Questionable whether he worked overtime. The court rejected the employer’s assertion that the employee failed to provide sufficient evidence of his overtime work since the facial recognition software did not reflect that he worked any overtime hours. This was not a dispositive factor since he wasn’t prevented from bringing a claim for unpaid overtime pay merely because he didn’t comply with the employer’s policies requiring regular reporting of overtime. Moreover, while his timesheets did not reflect any overtime hours, he provided more than just his deposition testimony to support his allegations.

He provided a detailed description of his claimed overtime hours, including specific dates, in his wage claim form. Moreover, his supervisor testified that he could not say the employee left each day at exactly 2:30 because he didn’t always carry a watch. Finally, three former coworkers attested that they saw him working past his standard work hours. Because he was not required to establish his hours worked with “absolute certainty or accuracy,” a jury could reasonably infer that he worked overtime even if his timesheets didn’t reflect such work.

The employer also failed to undisputedly establish the “precise amount of work performed” or disprove “the reasonableness of the inference to be drawn from the employee’s evidence.” Though it pointed out that his timesheets did not reflect his overtime hours, he argued that the FRS should have picked up his overtime hours on the occasions he worked late. He also testified that when he was working late, he did not check out in the FRS since it was at the entrance and the kitchen was in the back of the building. Though he also offered contradictory testimony indicating that he used the FRS when he left, there was enough evidence to defeat summary judgment.

Nature of work. The court also rejected the employer’s assertion that he misunderstood the meaning of overtime and thus the “type of work” he claimed as overtime was incorrect. In particular, he indicated that he may have believed he was working overtime when he was putting in extra efforts during his normal working hours. But even if that were so, he also specifically alleged that he worked beyond his standard work hours, which would mean he worked more than 40 hours per workweek.

Employer’s knowledge. Finally, triable issues existed as to whether the employer actually or constructively knew he was working overtime since he asserted that there were occasions when the owner and his supervisor saw him working past his standard work week. And while evidence of occasional after-hours work may not be sufficient to show notice of consistent overtime work for a long period of time, the employee also presented testimony from three former coworkers who had seen him working late. Additionally, his supervisor testified that he knew the employee had taken on additional duties and couldn’t be sure that he never worked past 2:30 p.m. on any occasion.

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