Employer Recording Requirements

March 29, 2011

Under Ohio and Federal laws employers are required to account for the time their employees spend working for them. Unfortunately, many employers shirk this obligation. The result is that employers may be more vulnerable to litigation for a variety of reasons. These reporting laws are important for both employers who are reviewing their wage and hour compliance and employees who believe their rights have been violated.

First, employers who do not keep careful records are more vulnerable to wage and hour litigation for recordkeeping violations under the plain language of the Ohio Constitution. Ohio voters passed the Ohio Fair Minimum Wage Amendment—Article II, section 34a—in 2006. This constitutional amendment states: “An employer shall maintain a record of the name, address, occupation, pay rate, hours worked for each day worked and each amount paid an employee for a period of not less than three years following the last date the employee was employed. Such information shall be provided without charge to an employee or person acting on behalf of an employee upon request.” Further reporting requirements are codified in Ohio Revised Code § 4111, et seq. The result: Employers must keep complete hourly records of time worked for their employees. Failing to keep records or provide them to their employees in a timely matter provides an independent cause of action under Ohio law.

Even more significantly, the Fair Labor Standards Act (FLSA) requires employers to proffer clear evidence in an FLSA action to rebut employee testimony. This has enormous consequences for employers in a collective action context, where multiple employees may testify that they worked unpaid overtime. The specific requirements for employers are located in the United States Department of Labor (DOL) regulations at 29 C.F.R. § 516. Moreover, under longstanding precedent—the U.S. Supreme Court’s decision in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), which interprets 29 U.S.C. §211(c)—the burden is on employers to provide precise records or accounting to defeat employees testimony as to hours worked under the FLSA.

In sum, records are the key to winning or losing an FLSA case. Employers are wise to consult a wage and hour attorney to make sure their record keeping practices do not violate applicable laws. Employees who believe they are owed unpaid overtime, misclassified, or have had their FLSA rights violated should consult an attorney as well. 

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