Cheryl Kirk v. Invesco, Limited

The Fair Labor Standards Act provides that covered employees who work more than 40 hours in a week must generally be paid overtime at a rate one and one-half times their regular rate. To assure compliance with that overtime rule, the Act and governing regulations require employers to maintain records of all hours worked by covered employees. If an employer has failed to keep the legally required records, the burden on the employee under Anderson v. Mt. Clemens Pottery Co. is simply to “produce[ ] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” The question presented is: Can an employee meet that burden of production by testifying from personal knowledge as to the number of overtime hours he or she worked (the rule in seven circuits and under the decision of one state court of last resort), or is the employee’s testimony insufficient unless “substantiate[d]” by additional evidence (the rule in the Fifth Circuit)?