The Fair Labor Standards Act (FLSA) dates back to 1938. Workplaces have changed drastically since that time. Many of the most common FLSA violations reflect that transition. Modern technology has transformed the workplace in ways the original framers of the FLSA could not have imagined. As an employer, it is not always easy to stay ahead of the curve on some these issues, however it is essential that employers remain vigilant in efforts to stay compliant with the FLSA. This is the third of a five-part series outlining 5 very common FLSA violations and providing tips on how to stay out of the Courtroom.
- Employee Misclassification – Exempt vs. Non-Exempt (Part 1)
- Calculating Regular Rate Incorrectly (Remuneration) (Part 2)
- Failing to Keep Proper Records (Part 3)
- Failing to Pay Employees for all Hours Worked (Part 4)
- State Law Issues (Part 5)
Failing to Keep Proper Records
The FLSA requires employers to maintain records for all employees. Simply keeping accurate records of all hours worked and all wages paid can be crucial in both avoiding FLSA mistakes and just as importantly minimizing the damage if there is a mistake. Additionally, some fire department administrators are faced with additional recordkeeping requirements that private sector employers do not have to contend with. Does your organization use compensatory time or claim a §207(k) partial exemption? If you answered yes to either of these, there are additional records that you must maintain.
Keeping proper records will not avoid an FLSA violation. In fact, an employer can maintain the most comprehensive records possible, and still be liable for countless FLSA violations. However, proper recordkeeping is essential to avoid additional damages in the event there is a violation. Recordkeeping is the employer’s responsibility. The employee has no obligation to maintain records of time worked. Courts have gone so far as to say, in the absence of proper recordkeeping, an employee may show he or she worked through a “just and reasonable inference.” In lay man’s terms, that means, the employees memory may serve as the record of hours worked in the event of a dispute. Think about the implications there.
The Department of Labor (DOL) lists records the employer is responsible to maintain on its website. Public agencies that utilize the partial §207(k) exemption for police and firefighters, and/or compensatory time in lieu of FLSA overtime must maintain additional records as well. The DOL’s website lists these additional additional requirements as well.
How Long Should Records be Kept
The DOL requires records kept for 2-3 years at a minimum, but most FLSA attorneys will strongly advise clients to keep records for longer than that. Additionally, public records laws and other state laws may require the employer maintain employment records much longer.