Free Initial Consultations 646.760.6493
How can I Prove I was Underpaid If My Employer Failed to Keep Records?

How can I Prove I was Underpaid If My Employer Failed to Keep Records?

If you plan to pursue a legal claim against your current or former employer for an overtime and wage hour violation, it is critical to get your facts straight. Many employers do not keep complete records of how much they pay their workers, despite the fact that they are required to by law. This means it often falls to the worker alleging an overtime and wage hour violation to prove how much he or she was paid–or not paid, as the case may be.

Appeals Court Upholds Damage Award Against Manhattan Restaurant

Consider this recent unpublished decision from the U.S. Second Circuit Court of Appeals here in New York City, Gamero v. Korodo Sushi Corp.. In this case, the plaintiffs worked at various times for the same Manhattan restaurant. The restaurant's owner had a long history of failing to comply with New York State rules regarding employee pay. For example, in 2008 the state Department of Labor fined the owner $2,000 for overtime violations. Of note here, the plaintiffs alleged that the restaurant was still failing to follow state record-keeping rules and, more importantly, did not pay the plaintiffs legally required overtime wages.

The case was initially tried before a federal judge in Manhattan, sitting without a jury. The judge ruled in favor of the plaintiffs on most of their claims. But the court only awarded about $25,000 in damages, which was significantly less than what the plaintiffs requested. For this reason, the plaintiffs appealed the judge's decision to the Second Circuit.

The appeal centered on two arguments. First, the plaintiffs said the trial judge based her calculation of damages on an incorrect assessment of their “regular rate” of pay while working at the restaurant. Second, the plaintiffs said the judge erred in only awarding them liquidated damages under New York State law, as opposed to both state and federal law.

The second argument is one we have discussed in prior blog posts. The Second Circuit separately held earlier this year that in wage and hour violation cases, a plaintiff cannot recover liquidated damages under both the federal Fair Labor Standards Act and the New York Labor Law. The Second Circuit affirmed that position in this case, noting that its prior decisions came after the plaintiffs filed their brief on appeal.

As for the first argument, the Second Circuit said the trial court correctly decided the plaintiffs' “regular rate of pay” was the minimum wage. The plaintiffs maintained their regular pay was actually higher. But as the appeals court noted, since the employer in this case did not maintain proper payroll records, the burden of proof was on the plaintiffs to demonstrate what they earned. On this subject, the Second Circuit said the plaintiffs' own testimony was “inconsistent and not credible.” They could not prove that their regular pay failed to track the minimum wage. Therefore that was the proper basis for calculating their damages.

Speak with a New York City Overtime and Wage Hour Lawyer Today

Remember, in any type of civil lawsuit, the plaintiff is responsible for proving his or her case. This is why it is important to engage an experienced New York employment law attorney early in the process to assist you in building the strongest case possible. Contact the Law Offices of Mahir S. Nisar, Attorney at Law, if you need help with a discrimination or overtime and wage hour case today.

Categories:

Contact Us Today

All Consultations Are Free and Confidential
    • Please enter your first name.
    • Please enter your last name.
    • Please enter your email address.
      This isn't a valid email address.
    • This isn't a valid phone number.
    • Please make a selection.
    • Please enter a message.