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Employer Liability For Wage And Hour Violations Based On A Supervisor’s Knowledge Of Unreported Overtime

Plaintiff alleged that he worked overtime that he did not report, and for which he was not paid. He claimed to have worked “off the clock” and to have reported the inaccurate hours, despite company rules requiring employees to accurately record their hours, because his supervisor told him that the employer “does not allow overtime pay.”  Plaintiff’s FLSA suit was summarily dismissed by a federal district judge based on the employer’s defense that plaintiff purposely reported his work hours incorrectly and therefore had “unclean hands.”


On appeal, the Eleventh Circuit Court of Appeals, in Atlanta, reversed the lower court in Bailey v. TitleMax of Ga., Inc., 2015 U.S. App. LEXIS 614 (11th Cir. 2015), ruling that once an employee has established that he has worked overtime without pay, and that the employer knew (or should have known) that overtime had been worked, the employer cannot assert an equitable defense against the FLSA claim.  To hold otherwise, the court stated, would contravene the purpose of the FLSA by permitting an employer to rely on its written policies regarding accurate reporting, while allowing supervisors to undermine those policies by encouraging, or even requiring, under-reporting.