By Tom Harper, The Law and Mediation Offices of G. Thomas Harper, LLC

Florida courts continue to hear many cases in which employees are seeking unpaid wages and overtime based on violations of the Fair Labor Standards Act (FLSA). Wage and hour cases often include claims for attorneys' fees under both the FLSA and the Florida unpaid wages law, Florida Statutes, Section 448.08. And if the employee can show that the employer's violation was "willful," she will ask for a back pay award worth 3 years of wages under the FLSA and 5 years of wages under the state's minimum wage law.

What's worse, such claims carry personal liability for owners and managers (that may mean you). A recent decision from the federal court in Miami provides excellent guidance on how to defeat wage and hour claims.

Disassembling Worker's FLSA Case

Pedro Alexis Castaneda Pino worked as a pallet disassembler at Universal Used Pallets, Inc., in South Florida for more than 10 years. He stopped working for Universal in November 2016, the same month he sued the company and its owner, Jose Lesteiro, for unpaid minimum wages and overtime under the FLSA. Universal asked the U.S. District Court for the Southern District of Florida to dismiss the case without a trial.

The court's local rules set forth the procedure that parties must follow when filing motions to have cases dismissed. Under the rules, Universal had to set out in writing each undisputed fact that its motion to dismiss was based on. Pino then had an opportunity to respond and point out which facts were in dispute. A dismissal is appropriate only when the undisputed facts show that there was no violation of law.

The FLSA requires that employees be paid minimum wage as well as time-and-a-half premium pay when they work more than 40 hours in a 7-day period. To establish his FLSA claims, Pino had to show that he performed work for which he wasn't properly compensated under the law. At the same time, Universal had a duty to keep accurate records of all the hours he worked and records of wages it paid him.

When Universal filed its motion to dismiss the case, it included copies of its weekly time records, which Pino had reviewed and signed each week. Once Universal provided its time records, Pino had to produce evidence that cast doubt on the completeness or accuracy of those records. In a way, time cards create a presumption of hours worked that must be rebutted by the employee if he disputes them.

If there's some evidence that the time cards are inaccurate, incomplete, or altered, the employee must show that he performed work for which he wasn't paid. According to the court, an employee must produce "sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference."

Pino argued that there was a genuine dispute over the accuracy and completeness of Universal's time cards. However, the court pointed out that Universal had produced a complete set of time cards for the dates in question, and each time card had been signed by Pino. What's more, Universal claimed that Pino had the opportunity to review his time cards each week and he signed them without ever disputing their accuracy.

Pino didn't deny that he had reviewed and signed each time card. Moreover, he didn't dispute that he never challenged the accuracy of his time cards during his employment. The court found that he hadn't presented enough evidence to establish that the time cards weren't accurate.

According to the court, balanced against a full set of time cards, his "self-serving testimony . . . now that the [time cards] are inaccurate is not enough to create a genuine issue of material fact." The court granted Universal's motion and dismissed Pino's case. Pedro Alexis Castaneda Pino v. Universal Used Pallets, Inc., Quality Pallets, Inc., and Jose R. Lesteiro,Case No. 16-24747-CIV-GAYLES (S.D. Fla., October 23, 2017).

Takeaway

Although modern fingerprint devices and electronic timekeepers are nice, the FLSA, which was passed in 1938, doesn't require a time card machine or any other complicated apparatus, just clear documentation of when nonexempt employees start and stop work each day. But it's insufficient for time records to show only that employees performed eight hours of work each day.

Instead, you should record the actual time they started work, the time they quit for lunch, when they went back to work after lunch, and when they finished for the day. You can use something as simple as a paper form to document their working time.

Moreover, make sure you have employees certify that the hours on their time records are accurate. You can preprint a statement on the form (or have a stamp made) that says something to the effect of "I certify that the hours on this time record are accurate and represent the actual hours that I have worked. I have performed no other work at home or off the clock."

As the Pino case clearly illustrates, having each of your nonexempt employees review and sign weekly time sheets can help you avoid problems under the FLSA.

Tom Harper, an editor of Florida Employment Law Letter, can be reached at tom@employmentlawflorida.com.