Your employer hands you a lump sum in cash every week. You worked more than 40 hours that week, and your employer does not give you a written statement with your payment of the hours worked, rates paid and any allowances claimed. Or your employer gives you a written statement, but it is not accurate - time is shaved. Perhaps your manager doctors time sheets, or tampers with computer records to delete some of the hours that you worked. Employers do this because they don’t want to make a record that you may not be getting the minimum wage or overtime as required by law, or because he wants you to work off the clock for free.
It is the employer’s obligation to keep accurate records of your wages earned and hours worked for up to six years, and to give you written notice of what is in those records. With each wage payment, your employer is supposed to give a written statement of your hours worked, the hourly rates paid (straight time, overtime, salary, commission), your gross wages, any allowances or deductions (such as for tips), and your net wages. If the employer does not do so, your employer is liable for damages of $100 per week up to $2,500 for failure to comply with the notice requirements. Also, in February every year, your employer must give you an annual statement containing similar information. For each week that the annual statement is not given, the employer owes you $100 up to the sum of $2,500. If your employer doesn’t give you these statements, maybe your employer is trying to hide that he is putting wages into his pocket. The requirement that the employer keep accurate records is not a mere technicality. The underlying policy is to make wage laws effective and to prevent wage theft. The employer's failure to keep accurate records is usually intended to cover up of wage violations, to the benefit of the employer and the detriment of the employee.
How do you establish your hours when the employer does not keep accurate records and does not give you pay stubs? This may be relatively easy if you have a regular schedule each week, but not so easy when your schedule varies and you don’t have records. Generally, in the absence of the legally required employer records, courts will let the employee rely on good faith estimates of the hours worked. In some circumstances, you will have kept your own work hour log, perhaps in a personal calendar. Or perhaps you have records of the time of the train or bus that you take. Maybe there is a security desk at your office building where you have to swipe a card. Maybe you have a record of the times or your emails, the first and last of the day. Or works assignment sheets. Other employees may be able to confirm the hours of your coming and going. Your spouse or significant other may also know the time you usually leave and get home. In the absence of employer records, or if the employer records are demonstrably false or doctored, courts may accept the employee’s good faith, reasonable estimates of work performed even if the amount is anecdotal and imprecise, uncertain and difficult to estimate.
Contact us online or call us at (212) 949-1001 if you think that your employer's harmful actions stem from not keeping proper records to hide that you are not getting minimum wage or overtime or that you are working off the clock, with with the result that you are not being paid as required by Federal and New York State Law. We will use our more than 25 years of experience to help you resolve the matter by negotiation or by going to court in the State of New York or New York City.