The Eighth Circuit in Carmody v. Kansas City Board of Police Commissioners addressed the standard of proof in a wage and hour case when an employer failed to maintain accurate timekeeping records. The Court held that even under the “relaxed standard” established by the U.S. Supreme Court in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), plaintiffs in wage and hour suits are compelled to provide evidence of “actual damages.”

The FLSA requires employers to maintain accurate and complete records of employees’ hours and compensation, including any alternate arrangements for dealing with overtime, tim- off or compensatory time.

In Anderson, the U.S. Supreme Court found that when an employer failed to maintain accurate time records, the employees were relieved of proving the “precise extent of uncompensated work.” In other words, Anderson created a relaxed evidentiary standard in cases when the evidentiary burden shifts to the employer because the employee showed that uncompensated work was performed (and enough evidence exists to reasonably show the amount and extent of the work).   Anderson only applies, however, where the “existence of damages is certain.”

Carmody involved a group of police officers who alleged that their Captaininstituted a policy where giving flextime or time off rather than receiving overtime pay at time-and-a-half. Neither the officers nor the city, however, tracked the accrued flextime.

The Court noted that the city’s failure to keep accurate time records allowed for the “relaxed” evidentiary standards explained above.   The officers provided evidence of the flextime policy, but there was no acceptable evidence of specific dates and hours worked, or money owed. The city’s failure to provide accurate time records reduced the officers’ burden, but did not eliminate it.

The takeaway is that even though employers must maintain accurate records of employee work hours and compensation, the failure to do so does not tip the pendulum inordinately in favor of plaintiffs. The better answer, however, is to always keep such accurate records. They are, invariably, the employer’s best protection on extra hours claims.