If you’re working long hours but not getting overtime pay, the courts are on your side, even if you don’t have an exact record of all your hours.

In a recent California case, an appeals court determined that a sales and marketing director who put in extra hours should receive a payout, even though the trial court had found his testimony about his work hours too vague to calculate damages.

The employee, Terry Furry, worked for the East Bay Express, a weekly newspaper based in Oakland, California. He worked a typical eight-hour day selling advertising, but in 2008, he added the title of marketing director, meaning he also organized marketing events, street teams and other promotional activities.

The following year, the company promoted Furry to sales and marketing director, offering a compensation package that included a base salary of $20,000, commissions from his sales and those of his staff, bonuses, and vacation pay. 

East Bay employees received commission breakdowns for each pay period, but the company didn’t track Furry’s work hours. His wage statements didn’t break down his pay by hours worked, hourly rate, overtime rate, double-time rate or amount of overtime worked. 

In Furry’s director role, he worked many evenings and weekends in addition to his normal work hours. He scouted entries for film festivals, recruited artists, did outreach, planned events, met with city officials, attended events, and performed other functions. In addition, he came up with original — and at times elaborate — artwork, advertising and props for East Bay Express events. He did receive commissions based on what his staff earned from promoting and staging these events.

But in mid-2014, Furry filed a complaint against East Bay Express and eventually the publishing company, alleging failure to pay minimum and overtime wages, not offering meal and rest breaks, intentionally failing to comply with itemized wage statement provisions, and multiple other claims.

Initially, it appeared that East Bay’s failure to track Furry’s hours would work in the newspaper’s favor. The trial court decided that East Bay didn’t owe Furry unpaid overtime because he didn’t offer enough evidence about “the amount and extent of his work” so that the court could reasonably determine that he didn’t receive pay for work hours. Furry’s testimony about his work hours was “uncertain, speculative, vague and unclear,” the trial court found. The trial court also said Furry didn’t account for how many of his extra hours were covered by commissions from the events, and he seemed to be guessing how much extra time he put in, which would make it “pure guess work and unreasonable speculation” for the court to determine uncompensated overtime hours.

Fortunately for workers’ rights, the appeals court cited precedent that the consequences for poor record-keeping should fall on the employer, not the employee. All the employee has to do is offer enough reasonable evidence about the amount and extent of work; it’s up to the employer to offer evidence of the precise amount of work performed. 

No one disputed Furry’s typical 40-hour work week, or that he did work outside of normal business hours, so it was obvious that he was putting in extra hours. According to the precedent the court cited, it would have been a “perversion of justice” to let the party at fault come out ahead simply because there were no exact records of the amount owed.

The appeals court also said East Bay owed Furry damages for providing inadequate wage statements, based on the Labor Code.

Furry had also sought damages for working through many of his lunch breaks (which he typically skipped on Mondays and Tuesdays due to the newspaper production schedule), but both courts agreed that doing so was Furry’s choice — not because East Bay didn’t offer breaks. It also wasn’t clear that East Bay knew Furry was working through lunch breaks.

Overall, the appeal makes a strong statement for the rights of employees and leaves little wiggle room for employers to excuse themselves from paying overtime.

If you think you’re being inadequately paid for overtime work, contact Keller Grover for a free consultation. We can help you understand your options and steps you should take. In more than 25 years litigating fraud and employment cases, Keller Grover has recovered billions for its clients.