If your employer is shaving your hours, don’t think you’re powerless to stop it. Save the evidence you do have, and don’t worry about the evidence you don’t have — holding employers accountable and collecting your due is an achievable result.
Ideally, the relationship between employers and their employees is open and honest. Employers should want the best for the people working for them, and those workers should want to produce the highest quality of work that they can. But of course, the reality doesn’t always live up to this rosy ideal — that’s why the falsification of timesheets can be such a huge problem in the workplace.
Many people may assume that employees are the party most likely to alter their timesheets, adding an hour here or there for a bit of extra pay. But because of the imbalance of power between employees and their employers, the problem is arguably far more troubling when employers are the ones fudging the numbers — and timecard fraud happens more often than you might think.
But in this era of digital timecards, forensics, audit trails, and evidentiary metadata, employees who’ve been wronged actually hold strong legal recourse — just as long as they know what to do.
When an Employer Would Change Your Timesheets
Not every instance of timesheet alteration constitutes an unlawful act. If an employee forgets to clock in or out, for example, their supervisor is permitted to change their timesheet to accurately record the hours worked. Employers can also alter timesheets to reflect any sick days taken by their employees.
But when employers step beyond these narrow boundaries and defraud employees of wages, they may find themselves being held responsible for violations of the Fair Labor Standards Act (FLSA). The FLSA requires employers to pay overtime at 1.5 times the normal wage rate for each hour in excess of the 40 hours an employee works each week (although exemptions to this law are numerous).
In order to avoid paying an increased hourly rate, many employers attempt to create company policies that limit the number of hours an employee can work in a week. This puts employees that work overtime hours in a tight spot: either they admit to violating company policy, or they falsify their own timesheet to comply, cheating themselves out of wages in the process. It might seem like a lose-lose scenario for employees — one in which they’re at fault no matter what choice they make — but that’s not actually the case.
The Precedent for Illegal Timecard Adjustment
Fortunately, the precedent set in the 2015 case Bailey v. TitleMax of Georgia established that employers can’t cheat their employees out of the wages they’ve earned. The case involved an employee whose supervisor asserted that TitleMax did not pay overtime — a statement that, had it been in any way true, would have implicated TitleMax in highly illegal labor practices.
But because he believed he wasn’t entitled to overtime pay, the employee allowed his supervisor to reduce his recorded labor hours, and effectively fake his timecard for approximately one year. In response to the lawsuit, TitleMax pointed out that its internal policies require employees to accurately report and verify their hours to managers, and asserted that it was therefore the plaintiff who was actually at fault.
But the employee was able to prove both that he had worked unpaid overtime and that his employer either knew, or should have known, about this overtime work — the two vital elements to proving an overtime claim under the FLSA. The Eleventh Circuit ruled in favor of the employee, noting that the FLSA is intended to protect employees who may not have the same bargaining power as their employers.
Notably, employees are not required to prove every unpaid overtime hour that they worked. Because the FLSA is intended to protect employees from wage theft, employers are required to maintain accurate records of their employees’ work hours. If they don’t, an employee can prove the amount of unpaid overtime as a matter of just and reasonable inference.
What Employees Can Do If Their Boss is Changing Their Timecard
For employees who believe they’ve had their timecards illegally falsified, the most important thing they can do is know their rights. As demonstrated in Bailey v. TitleMax of Georgia, employers cannot deny employees wages simply because of a possible violation of company policy.
Employees should also preserve as much evidence as they can (timecards, call records, pay stubs, emails, cell phones, etc.). A simple text message to a friend saying “Working late tonight,” can prove invaluable in such cases.
Employees should keep their own written records of hours worked, but there’s no need whatsoever to obtain your employer’s records yourself. Employers are required, by law, to maintain accurate records of their employees’ hours, and to turn those records over to the courts in the event of a dispute. And if any employer is unwilling or unable to do so, employees need only give a common-sense estimate of their hours to obtain recompense, due to the “just and reasonable inference” standard.
So if your employer hasn’t maintained accurate records, don’t worry — you don’t need proof of every unpaid hour. But you will likely need an experienced employment lawyer who can help you prove your case. If you suspect that a current or former employer may have falsified your timesheets, the most prudent course of action is to contact an employment law attorney like John L. Mays for an initial consultation.
Initial consultations can be done over the phone, and are generally quick, easy, and free. To discuss whether or not you might have a case, contact the employment law experts at Parks, Chesin & Walbert. With decades of combined experience and the legal savvy necessary to protect your rights, we’re ready to advocate for you.