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Proving Overtime If Your Employer Does Not Keep Records


Employees often work hours in excess of forty (40) hours per week. Even if the employee is entitled to overtime wages (paid at one and one half times their regular hourly rate), employees may be reluctant to assert their right to overtime because they have no records showing that they worked more than forty (40) hours per week. However, employees are not obligated by North Carolina or Federal wage and hour law to keep their own time records in order to recover for overtime work performed. It is the employers responsibility to keep track of your overtime hours if you are an hourly non-exempt employee. If an employee does not have records of the amount of hours worked in a given workweek, they can still recover overtime pay. It is an employer’s legal responsibility to keep time and pay records for its employees. Under the North Carolina Wage and Hour Act and the federal Fair Labor Standards Act, employers must keep records showing the employees regular hourly pay rate, its daily or weekly “straight-time” earnings, the total overtime earnings per workweek, all additions or deductions from wages, and the total wages paid each pay period. If the employer does not follow this record keeping law by failing to maintain accurate time and pay records, the courts will allow an employee to testify, proving the amount of overtime hours worked.

In North Carolina, employees not compensated for overtime wages do not need to prove each hour of overtime worked with absolute accuracy or certainty. North Carolina Wage and Hour Law does not blame an employee for not keeping records of overtime hours worked. The North Carolina Wage and Hour Act will punish an employer for failing to keep exact and precise measurements of hours worked and overtime earned.

Even if the employee cannot specifically account for each hour of overtime worked in a given workweek, the court will not penalize the employee. The court places the burden of overtime records on the employer. Otherwise, the employer keeps the benefits of the employee’s labor without paying compensation as required by North Carolina and Federal wage laws.

Generally, an employee only needs to prove that he performed overtime work and was not properly compensated. The initial burden for the employee is to produce sufficient evidence to show the amount of overtime hours worked by a “just and reasonable inference.” This is a lower standard than is required in most civil cases. After proving an employee worked overtime hours, the employer must rebut the employee’s estimation and calculations. The employer must be able to show the precise amount of work performed. If the employer cannot show that overtime hours were worked by an employee, the employee is entitled to overtime compensation even though the employee may only be able to approximate the amount of overtime pay the employee is owed.

If you worked overtime at more than forty (40) hours per week and were not compensated for your overtime hours, please contact wage and hour employment attorney Karl S. Gwaltney. Karl is available by phone at (919) 960-1545 and will provide a free telephone consultation. Karl S. Gwaltney handles employment cases dealing with unpaid wages and overtime throughout Wake County, Cary, Apex, Durham, Vance County, and Henderson. The firm takes certain wage and hour/overtime cases throughout North Carolina, particularly when groups of workers are involved. Contact the firm to discuss your overtime claim today. The unpaid wages attorneys at Maginnis Law, PLLC are often able to represent employees in overtime disputes on a contingency basis, meaning no attorney fees are owed up front and fees are only owed if you recover funds from your employer.