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Even Ke$ha Knows That! Non-Exempt Employees Must Log Their Time

By Robyn Hagan Cain on December 05, 2012 | Last updated on March 21, 2019

Frank Brown sued his former employer, ScriptPro, LLC, alleging Fair Labor Standards Act (FLSA) violations and trying to collect payment for overtime hours he allegedly worked from home. Brown, however, was a non-exempt employee and he didn't log that time.

That brings us -- and the Tenth Circuit Court of Appeals -- to what we will call the Ke$ha rule of non-exempt compensation: If an employee wants to be paid for his work, it has to be "tik tok, on the clock." Or the payment party will stop.

Brown worked for ScriptPro as a Customer Service Operations analyst. In 2008, Brown allegedly worked 80 hours from home for which he didn't receive compensation.

To succeed on an FLSA claim for unpaid overtime, the plaintiff has the burden of proving that he performed work for which he was not properly compensated. While the district court found that Brown produced uncontroverted evidence that he actually worked overtime, it found that he failed to show the amount of overtime by justifiable or reasonable inference.

The Tenth Circuit agreed.

Brown didn't record the time he worked from home in ScriptPro's timekeeping system, and he didn't keep any other records to document the hours he worked.

Brown argued that ScriptPro was responsible for keeping accurate records, and he shouldn't bear the burden of proving the precise amount of overtime he worked. The appellate court saw things differently, noting that courts only relax the plaintiff's burden to show the amount of overtime worked where the employer fails to keep accurate records.

ScriptPro kept accurate records, and required employees to document the amount of time they worked. Brown had the opportunity to access the timekeeping system from home. He simply chose not to.

Since Brown didn't notify ScriptPro of his extra work through the established overtime record-keeping system, the failure to pay overtime was not a FLSA violation.

Maybe your FLSA client -- like Ke$ha -- is willing to fight 'til he sees the sunlight. But, if he's a non-exempt employee who failed to put his overtime on the clock, that fight will be in vain.

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