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D.C. law requires an employer to pay a “non-exempt” employee overtime for any hour worked in excess of 40 hours in a workweek. Further, an employer must make, keep, and preserve records for three years regarding, among other things, each employee’s regular hourly rate of pay, total hours worked each workday and each work week, and time of day and day of week on which employee’s workweek begins.  .  As explained below, if an employer does not timely pay overtime wages and does not keep required wage records, the employer cannot avoid liability by belatedly paying those wages.

If an Employer Fails to Pay Overtime, the Employee is Entitled to Damages Based on Unpaid Wages.

Under District law, if an employer pays an employee less than the wage to which the employee is entitled, the employer is liable to the employee in the amount of unpaid wages, statutory penalties, and, with certain exceptions, liquidated damages equal to three times the amount of unpaid wages.  A court may reduce liquidated damages to no less than unpaid wages only if the employer demonstrates that the act or omission was in good faith, that the employer had reasonable grounds to believe that the act or omission was not in violation of the law, and the employer promptly paid the full amount of wages claimed to be owed to the employee.

An Employer Cannot Avoid Liability by Paying Overtime After Wages are Due.

Neither D.C. law nor the similar federal Fair Labor Standards Act (FLSA) gives an employer the opportunity to correct the failure to pay an employee wages due so as to avoid liability.  An FLSA violation occurs when an employer fails to pay employees “their minimum and overtime wages on their regularly scheduled paydays.”  Martin v. United States, 117 Fed. Cl. 611, 621 (2014).  Further, D.C. law requires an employer to pay an employee “all wages earned . . . on regular paydays designated in advance by the employer and at least twice during each calendar month.”  Thus, once an employer fails to timely pay an employee wages, a violation has occurred.

In the Absence of Employer Records, Damages May Be a Just and Reasonable Approximation Based on Evidence.

As explained above, damages for a violation of D.C. wage law are a function of unpaid wages.  In the absence of wage records, however, under the FLSA, an employee must show that they “performed work for which [they were] improperly compensated . . . and produc[e] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.”  Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1046, 1047 (2016) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)).  The employer may then rebut the employee with “evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inferences to be drawn from employee’s evidence.  If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.”  Anderson, 328 U.S. at 687–88.

Although an Employer Cannot Correct a Violation, It Does Have Options.

Even if an employer belatedly provides estimated back pay in an amount that equals or exceeds the amount of back pay actually owed, supported by evidence, the employee may still bring a claim under D.C. wage law. Such a claim could result in damages equal to twice unpaid wages, at a minimum.

Nonetheless, there are steps an employer may take to manage its liability in cases where it has discovered that it has failed to pay overtime wages or keep records.  An employer in this situation should consult with an attorney to understand the options.

This material is for informational purposes only and should not be relied on for legal advice.  For legal assistance with an employment matter, contact our Firm through the “Contact Us” page on our website, or calling us at 202-795-9999.