After-hours emails equals knowledge of employee overtime
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Friday, February 8, 2019

After-hours emails equals knowledge of employee overtime

By Payroll and Entitlements Editorial Staff

A federal district court in Illinois denied an employer’s motion for summary judgment on an employee’s FLSA overtime and retaliation claims, where the employee alleged that the employer had pressured her not to record her overtime and then fired her a month after she lodged a complaint. Given the after-hours email exchanges with her supervisors, a jury could find that the employer “knew or should have known that she was performing substantial work after her shift ended.” And despite her position as payroll administrator, a jury could find that she was susceptible to pressure not to report overtime because her timesheets required approval of the same supervisors who encouraged her to work after hours but to minimize, if not eliminate, her overtime.

Background. The employee worked as the payroll administrator, ensuring that the company’s workers logged their hours in the payroll system and entering her own time, including requests for overtime. She claimed she performed several kinds of overtime work outside of her shift, including responding to emails, recruiting activities, and picking up water for the office. She estimated that her overtime averaged five hours per week beyond a built-in 2.5 hours of overtime included in her normal weekly schedule, for a total of 7.5 overtime hours per week.

According to the employee, she did not report all of her overtime for fear she would get into trouble. Her supervisors told her that she should minimize her overtime and the new HR manager unsuccessfully tried to remove the employee’s built-in overtime hours. Despite discouraging her from working overtime, her supervisors expected her to help with payroll issues that arose outside her normal shift and she felt obligated to immediately respond to after-hours requests.

In 2014, the employee asked to be compensated for overtime in the form of a bonus, but she was denied. She eventually complained, in March 2017, that she was working after hours without being paid overtime; she allegedly stated that the failure to pay overtime was illegal. She was terminated about a month later. She filed suit under the FLSA and the Illinois Minimum Wage Law and the employer moved for summary judgment.

Overtime claims. To prevail on a FLSA claim for unpaid overtime, a plaintiff must clear two hurdles: first, she must show that she worked overtime without compensation, and second, she must show that the employer had actual or constructive knowledge about her overtime work. Here, the employer argued that it had had no knowledge of the employee’s overtime hours, as she had not reported them.

In the court’s view, though, the employee submitted evidence from which a reasonable jury could find that it knew or should have known about her overtime, stating, “[i]f [plaintiff’s] supervisors had any doubts about whether she was working overtime, they needed only check their email inboxes,” as the employee had submitted evidence of after-hours email exchanges. “By observing her after-hours email responses to their requests, [plaintiff’s] supervisors—and thus [defendant] —surely knew or should have known that she was performing substantial work after her shift ended.” The court further held that a reasonable jury could conclude that, despite her position as payroll administrator, the employee was susceptible to pressure not to report overtime because her timesheets required the review and approval of the same supervisors who encouraged her to work after hours but to minimize, if not eliminate, her additional overtime.

The employee submitted evidence that she did not report small segments of overtime or time spent in lunch meetings, due to both the effort required to record such time, (which motive would not support a FLSA claim) and her fear of reprisal (which would). The court held that determining what weight to afford these competing explanations was a matter for the jury. Viewing the evidence in the light most favorable to the employee, a jury could find that the employer, not the employee, was responsible for her inaccurate time entries. For these reasons, summary judgment was denied.

Retaliation. Also denying the employer’s motion as to her FLSA retaliation claim, the court found that the employee had submitted evidence that she complained to a supervisor in late March 2017 that the employer was violating the law by not paying her for her additional overtime work, and that such a complaint was protected expression under the FLSA. The court further found that her termination had occurred about a month after her complaint, and that this was sufficiently “suspicious timing” to raise a question of fact as to whether the employer’s proffered legitimate explanations for her termination (that she didn’t work well with her supervisor) were merely pretextual.  (Garcia v. Draw Enterprises III, LLC, DC lll, 169 LC ¶36,669.).

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