What Happens When The Employer Fails To Keep Time Records?

Over the years many clients facing claims by employees for unpaid wages have asked what the consequence is for not keeping time records.  Sometimes this happens just because the employer does not keep records.  Sometimes it happens because the employer failed to properly classify the employee as non-exempt.  In either case the client wants to know whether the employee's testimony is enough to prevail in a lawsuit.  The answer is a resounding yes. 

I thought you might be interested in the language from an Order issued by Beau Moore, Hearing Officer with the Labor Commissioner's office, on December 9, 2015.  The employer had not kept accurate time records.  The employee was claiming she was misclassified as exempt and therefore never received overtime compensation.   


According to Hearing Officer Moore: 

Hernandez v. Mendoza, (1988) 199 Ca.App.3d 721, 245, clearing establishes that the testimony of an employee concerning the number of hours worked is sufficient to satisfy the burden of going forward with the evidence.  When the employer has kept proper and accurate records, the employee may easily discharge the burden by securing production of those records.  When the employer’s records are inadequate, inaccurate or nonexistent, a more difficult problem arises.  The solution is not to penalize, by denying recover, because the employee may not be able to prove the precise extent of improperly compensated work.  Such a result would place a premium on the employer’s failure to conform to the employer’s statutory responsibility.  It would allow the employer to keep the benefits of the employee’s labors without paying due compensation. 

(Lopez v. Resource Center for Survivors of Sexual Assault and Family Violence, pp. 6:24-7:5.)


What does this mean?  It means that if the business keeps records, the resolution of the issue is determined by those records.  When accurate records are not kept, the testimony of the employee is sufficient to establish hours worked.  Of course, if the employer has evidence to the contrary, such as alarm records showing when the employee came and left the office, that evidence will be considered.  But absent proof to the contrary, the employee’s own testimony is sufficient to justify an award of unpaid wages.