Copier Victor Victorious: Sixth Circuit Clarifies Plaintiffs’ Evidentiary Burden in FLSA Cases
In Viet v. Copier Victor, Inc., No. 18-6191 (March 10, 2020), the U.S. Court of Appeals for the Sixth Circuit affirmed summary judgment for Copier Victor and its founder, Victor Le, on an employee’s overtime claims under the Fair Labor Standards Act (FLSA), finding the employee’s testimony regarding the number of hours he worked on a weekly basis too vague and conclusory to withstand summary judgment. The Sixth Circuit’s decision clarifies the evidence employees must present to create a jury question as to whether they worked overtime without proper pay.
Born in Vietnam, Quoc Viet immigrated to the United States as a teenager and, after serving in the U.S. Navy, began work as a handyman in Tennessee. In 2012, in the course of his work, Viet met Victor Le, who also had previously lived in Vietnam, where he operated a company that sold copiers. When Le came to the United States, he incorporated a company, Copier Victor, to export copiers to Vietnam for resale.
Viet invested $10,000 in Copier Victor in exchange for payments of $750 every 30 or 40 days. He also received training from Le on how to purchase used copiers online. After training Viet, Le moved back to Vietnam and ran Copier Victor from Vietnam through the fall of 2016. Viet purchased copiers in the United States, then shipped the copiers to Le, who resold them in Vietnam. Le typically gave Viet instructions on the types of copiers to buy and the general price ranges to seek. Viet then located the designated copiers and negotiated their purchase. When Viet had accumulated enough copiers in Tennessee, he would oversee their bulk shipment to Vietnam.
Copier Victor treated Viet as an independent contractor and annually issued him an Internal Revenue Service Form 1099. Le set no work schedule for Viet, did not keep track of his hours, and paid him a fixed sum for each copier Viet purchased, rather than a fixed wage or salary. The fixed sum varied depending on the purchase price of the copier.
Ultimately, Le and Viet had a falling out and ended their business relationship on less than amicable terms. Le alleged that Viet had sent damaged copiers, while Viet alleged that Le had stopped paying him and reimbursing him for expenses. Viet sued Copier Victor and Le claiming that he had been an employee, not an independent contractor, and that they had violated the FLSA by failing to pay him overtime wages from April 2014 to September 2016. Viet testified that he had worked 60 hours per week, but he provided no written evidence to support his claim.
The district court granted summary judgment to Copier Victor and Le. In its ruling, the court assumed that Viet had been an employee but concluded that Viet’s evidence regarding the number of hours he had worked was “‘equivocal, conclusory, and lacking in relevant detail.’” As a result, the court found that Viet was not entitled to reimbursement under the FLSA.
The Sixth Circuit’s Analysis
The FLSA requires employers to pay employees overtime at a rate not less than 1.5 times the regular rate of pay for every hour worked over 40 in a workweek. Employees claiming not to have been paid overtime are required to prove that they performed work that was not properly compensated. To meet that burden, an employee may request time and pay records from the employer. Absent such records, the employee may still attempt to establish damages by producing sufficient evidence to show the amount and extent of uncompensated work “‘as a matter of just and reasonable inference.’” This relaxed burden applies only after the employee has met the initial burden of showing that he or she performed uncompensated overtime work.
In this case, the Sixth Circuit focused on whether Viet had met this initial burden. Applying the summary judgment standard under Federal Rule of Civil Procedure 56(c), the court confirmed that he had not. Specifically, the court noted that Viet had failed to provide “‘specific facts, as opposed to general allegations’” establishing that he had worked overtime. The court also observed that other circuits had found conclusory allegations about an employee’s work schedule to be insufficient to meet the employee’s burden. For example, the U.S. Court of Appeals for the Eighth Circuit determined that an employee claiming to have worked 60 to 70 hours per week without providing additional details showing that the tasks performed required more than 40 hours could not create a question for a jury.
Such was the case here as Viet alleged that he had worked approximately 60 hours per week, but he failed to support his estimate with specific facts about his daily schedule. Although he pointed to some vague emails and described the nature of the copier business, the court found this evidence lacking in specificity. According to the Sixth Circuit, Viet’s evidence “would leave a jury simply guessing at the number of hours he worked in any given week.”
Copier Victor clarifies the evidentiary burden employees must meet at summary judgment when alleging failures to pay overtime under the FLSA. Like other circuits, the Sixth Circuit has concluded that conclusory estimates about an employee’s average workweek, without more, do not permit a trier of fact to conclude that the employee worked overtime.
While Copier Victor was a single-plaintiff case, its ruling may have implications for class and collective actions under the FLSA. Employees, certainly individually, and arguably on a collective basis, must be able to establish their overtime hours worked with the requisite specificity for their claims to survive summary judgment.