The difficulty in defending certain wage-and-hour cases is that employers are often asked to prove a negative. “I worked __ number of hours of overtime,” says the plaintiff employee. “Prove that I didn’t.” If the hours are for unclocked work, the employer often lacks documentation to refute the employee’s story. Which, in turn, leads to a case of “I worked / no you didn’t.” That, in turn, creates a jury question, the risk of a trial, and a settlement (since very few employers want to risk paying the plaintiff’s attorneys’ fees if the employee wins).

In Viet v. Le, the 6th Circuit Court of Appeals provides employers much needed relief from these extorting lawsuits.

For several years, Quoc Viet worked for Copier Victor, owned by Victor Le. Le treated and paid Viet as a 1099 independent contractor. When their business relationship soured, however, Viet sued for unpaid overtime under the FLSA, claiming that he was an employee owed overtime. The only evidence Viet submitted in support of his unpaid overtime claim was his assertion that each week he worked “60 hours per week.”

The 6th Circuit concluded that without additional substantiation, the employer was entitled to summary judgment.

The district court correctly held that Viet’s testimony was too “equivocal, conclusory, and lacking in relevant detail” to create a genuine dispute of material fact under Rule 56. Begin with Viet’s estimate of his average weekly schedule. He claimed that he typically worked 60 hours per week.… Viet did not fill in his general 60-hour estimate with specific facts about his daily schedule. Without Viet’s general estimate, his deposition testimony would leave a jury simply guessing at the number of hours he worked in any given week.…

All told, Viet could withstand summary judgment only if we adopted a legal rule that conclusory estimates about an employee’s average workweek allow a rational jury to conclude that the employee worked overtime.…

Viet argues that Le and Copier Victor failed to identify evidence showing that he worked less than 40 hours per week. Yet Viet bears the burden to prove that he worked overtime during every week for which he seeks overtime pay.

What evidence about the number of hours an employee works will suffice to create a jury question? According to the Viet court, a coherent description of “their day-to-day work schedules or the time it takes to complete their duties so that a rational jury could find that they worked more than 40 hours in the weeks claimed.” They do not need to “recall their schedules with perfect accuracy,” but they must do more than “simply turn a complaint’s conclusory allegations about overtime work into an affidavit’s conclusory testimony about overtime work and expect to get a jury trial.”

A common-sense solution for a difficult issue. Go forth and litigate; Viet will provide much-needed assistance in FLSA cases.


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