When an employee sues for overtime wages, but cannot accurately provide an accounting of all hours worked, because neither the employee nor the the employer kept a record of the employee's time, who bears the burden of proving exactly how many hours were worked? The answer is that the employee bears only the burden of proving that some unpaid compensable time was worked, and then providing some estimate of how many hours. Then the burden shifts to the employer to establish a more certain number.
Labor Code § 1174 requires every employer to maintain "payroll records showing the hours worked daily by and the wages paid to employees." Similarly, Section 7 of each Industrial Welfare Commission (IWC)wage order requires employers to keep accurate information, including time records showing when the employee begins and ends each work period, meal periods, split shift intervals, and total hours worked. "It is the employer’s responsibility to keep accurate records of the time that employees work. If the employer fails to maintain accurate time records, the employee’s credible testimony or other credible evidence concerning his hours worked is sufficient to prove a wage claim. The burden of proof is then on the employer to show that the hours claimed by the employer were not worked." DLSE Enforcement Policies and Interpretative Manual, § 29.1.1. Failure to do so can have quite significant evidentiary consequences for the delinquent employer.
"Where the employer has failed to keep records required by statute, the consequences for such failure should fall on the employer, not the employee. In such a situation, imprecise evidence by the employee can provide a sufficient basis for damages." Monzon v. Schaefer Ambulance Service, Inc. (1990) 224 Cal.App.3d 16. See also Anderson v. Mt. Clemens Pottery Co. (1945) 328 U.S. 680, 688 ("Due regard must be given to the fact that it is the employer who has the duty to keep proper records of ...hours.... If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.")
If a trial court concludes that an employee's offer of proof of the number of overtime hours would cause the court to guess at the amount of damages, and therefore the employee cannot meet his burden at trial, is an error of law. "Once an employee shows that he performed work for which he was not paid, the fact of damage is certain; the only uncertainty is the amount of damage. In such a case, it would be a perversion of justice to deny all relief to the injured person, thereby relieving the wrongdoer from making any restitution for his wrongful act." Hernandez v. Mendoza (1988) 199 Cal.App.3d 721.
The lesson to be learned: keep records of the hours worked by all employees, even the ones you think are exempt.