Counsel for wage-and-hour plaintiffs often argue – in settlement negotiations and in court – that the plaintiff’s burden under Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946), applicable if there are no records of hours worked, renders the employee’s recitation of events unassailable. This position misstates the law, as reflected in the Ninth Circuit’s recent decision in Garcia v. Bana, 2015 U.S. App. LEXIS 3896 (9th Cir. Mar. 12, 2015).

In Bana, the court reviewed a trial court’s finding that the plaintiff failed to establish uncompensated overtime work, despite his testimony that at times he worked an uncompensated sixth shift on a Saturday. Based on this testimony, plaintiff’s counsel urged that the Court should have “credit[ed] this testimony and “analyze[d] whether the hours claimed by Plaintiff [were] reasonable in light of the evidence on [sic] the records [sic].” The trial court had not credited the testimony, instead crediting the employer’s rebuttal testimony that “when [Plaintiff] did [work on Saturday] he had taken off a day during the week.”   Because the record permitted the Court to weigh this competing evidence and make a credibility determination, the Ninth Circuit held that the lower court’s finding did not violate the Mt. Clemens standard and was not “legal error.”

Records of hours worked remain the best (and most streamlined) defense to a claim of uncompensated overtime work. In the absence of such records, however, this case reiterates that employers are not completely defenseless.