Dive Brief:

• A driver's claim for unpaid overtime can continue despite facial recognition timekeeping records that contradict his allegations, a federal judge determined, denying the employer's motion for summary judgment (Chen v. Royal Garden Adult Medical Daycare Center, Inc., et al. No. 17-2087 (D. Md., Dec. 6, 2018)).
• Yin Wen Chen, formerly a driver for a Maryland-based adult daycare center, sued the employer, alleging he was due almost $50,000 in back overtime pay. The employer uses a facial recognition system to track employee hours, taking a photo of employees upon arrival and departure. Chen admitted that the records do not show that he worked overtime but he testified that he worked more than 40 hours each week and three former co-workers provided sworn declarations that they saw him working late on several occasions.
• A reasonable juror could infer that Chen worked overtime, the court said, in spite of the timesheets not reflecting such work.

Dive Insight:

The Fair Labor Standards Act requires that non-exempt employees be paid time and one-half when they work more than 40 hours in a workweek. Employees must be paid for work "suffered or permitted" by the employer even if the employer does not specifically authorize the work. If the employer knows or has reason to believe that the employee is continuing to work, the time is considered hours worked, according to the U.S. Department of Labor, and the employee must be compensated.

DOL's Wage and Hour Division provides an example in its Fact Sheet #53: A residential care facility pays its nurses an hourly rate. Sometimes the residential care facility is short staffed and the nurses stay beyond their scheduled shift to work on patients' charts. This results in the nurses working overtime. The director of nursing knows additional time is being worked, but believes no overtime is due because the nurses did not obtain prior authorization to work the additional hours as required by company policy. Is this correct? No. The nurses must be paid time-and-one-half for all FLSA overtime hours worked.

Employers, however, are free to discipline employees who work unauthorized overtime. Employers can't refuse to pay for that time, but employees can be subject to other disciplinary measures, up to and including termination.