Can you prove it? Navigating the burden of proof in unpaid wage claims

Your unpaid wage claim may depend on your word against your boss’s.

I like to joke with clients that three years of law school boils down to a simple, four-word question: Can you prove it?

Our legal system is designed to give everyone access to the courts to pursue justice for all sorts of wrongs. Unfortunately, this is often perceived as an invitation for frivolous lawsuits, and anyone can sue anyone for anything.

While it might be true that you can file a lawsuit for just about anything, the courts quickly demand that you are able to prove you were wronged in a legally recognized way and that the person or business you’re suing is responsible for causing your harm. In short: Can you prove it?

When the harm is being denied pay—including overtime, bonuses, commissions, and reimbursements—the question becomes even more pointed. Can you prove you worked those extra hours, earned that bonus or commission, or deserve reimbursement for business expenses?

The burden of proof is on you

It’s essential to know that when you sue anyone, the burden of proof is on you. Sometimes it’s easy to prove your case—your car was parked, and the defendant wrecked it by ramming his car into it. Other times, it can be very difficult.

For example, you work an hourly job. You write down on your timecard that you worked 44 hours a week and deserve four hours of overtime. But when you get your paycheck, it only has pay for 40 hours. If your boss denies you worked those extra four hours, how can you prove it?

We ran into a case like that at Employee Law Group. Our client worked at a remote job site and had to call into his employer’s office to report when he was on-site and working and again at the end of his shift to say he was done. Often, he was required to work well past the end of his eight-hour shift, and he dutifully reported those extra hours when he called in to say he was leaving.

But the employer wasn’t recording the hours accurately. If our client reported two overtime hours, the employer only recorded one. If our client worked 48 hours during a week, the boss only marked down 43. When the client complained, the boss would go back and “correct” the problem… by paying another two hours of overtime instead of the full five still owed. So, the boss would get three hours of free labor.

The question for us in bringing his claim was simple: How can we prove this? The employer is the one keeping all the records—and they’re doing it dishonestly.

Fortunately for us (but unfortunately for the employees), the boss was pulling the same dirty trick on everyone. So when we said that we were willing and able to bring in a dozen current and former employees who would testify that they, too, were routinely cheated out of their overtime pay, the boss was suddenly eager to resolve the case.

That case was unusual because even though we didn’t have documents to prove our case, we had a parade of witnesses who could all tell the same story. That’s not going to happen very often. It shows how important it is for you to keep your own separate records to make sure that you’re getting paid what you deserve and to prove you’re getting ripped off if you don’t.

How to protect yourself against unpaid wages

What should you do if your work time isn’t correctly reflected in your paycheck? Here’s how you can protect yourself against unpaid wages

• Keep written records of your schedule—when you clock in, when you take breaks, and when you clock out. Do it all the time, every day you go to work. Your records may be the only thing that can prove your claims.
• Every time your paycheck comes up short, complain in writing. Send an email explaining the hours you worked, what your pay should have been, and what they paid you. Send it in email form and ask for their response. If you use company email, forward copies of your email and their response to your personal email account and save them. Do this every time—you never know when your employer will remove your access to your company email account.
• Ask your coworkers if they ever get shorted on their wages. If several of them say yes, you might have a group claim that your boss is deliberately withholding your pay. If the number of people getting cheated is very large, it could even become a class action.
• If you have a bonus plan or commission agreement, keep track of your progress toward your bonus goals or every sale you make and the percentage you’re owed in commission.
• If you spend your personal money on things you need for business—like supplies, transportation, parking, etc.—keep the receipts, scan them, and submit them regularly. Keep track of what the expenses were for.
• Keep all of your interactions with your boss and payroll people professional and courteous. Sometimes underpayment is just a mistake, and it’s not helpful to antagonize the people who are best equipped to fix it. You also have to consider that everything you write might be evidence in a courtroom someday.

Get help from a qualified attorney

If you believe you have been cheated out of your wages, it’s best to seek help from a qualified attorney who can help you. At Employee Law Group, we’ve handled thousands of cases where clients haven’t gotten paid all they earned. We’ve negotiated with employers big and small and taken Fortune 500 companies to court to ensure that our clients get their proper pay. And because California law holds dishonest employers accountable when they cheat their workers, our fees and costs are paid by your boss when we win a judgment or settlement on your behalf.

Schedule an appointment today.