Catherine R. Locallo, Robbins Schwartz, Chicago
312-332-7760 | E-mail Catherine R. Locallo
Admissible Evidence Necessary to Support Claim to Overtime Wages Under FLSA
The plaintiff filed a lawsuit against her former employer alleging that the employer failed to compensate her for working overtime for a three-year period, as required by the Fair Labor Standards Act of 1938 (FLSA), ch. 676, 52 Stat. 1060. The district court granted summary judgment in favor of the defendant and the plaintiff appealed. The seventh circuit affirmed, holding that the plaintiff failed to meet her initial burden of establishing that she worked overtime when she only alleged vague and unsupported assertions, and that a jury could not infer from the evidence what amount of overtime was worked, if any. Osburn v. JAB Management Services, Inc., 126 F.4th 1250 (2025).
The FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in federal, state, and local governments. Overtime pay at a rate of not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek.
Background Facts
The defendant, JAB Management Services, Inc., hired employees to provide prison healthcare to contracted entities. The plaintiff, Tara Osborn, was initially hired in 2009 as an administrative assistant. She was promoted several times, including to the position of technical support specialist, providing on-call support regarding inmate medical records. 126 F.4th at 1255. This is the position she last held with the company prior to termination. The technical support specialist is a fully remote, salaried, nonexempt position. Osburn’s responsibilities included providing on-call support to Advanced Correctional Healthcare customers, including issues related to the records system. While JAB Management’s regular business hours were 8:00 a.m. to 5:00 p.m., Osburn could design her own schedule since the position she held was remote. Id. JAB Management’s timekeeping system did not allow her to enter time outside of their regular business hours. Id.
At some point, Osburn’s supervisors became dissatisfied with her ability to communicate and manage her workload. She could not explain what she was working on throughout the day and several tasks had to be assigned to others. JAB Management provided her with coaching. She was terminated on August 2, 2021, when her performance did not improve. Id.
Osburn sued JAB Management following her termination, in part, claiming that they failed to pay her overtime in violation of the FLSA. Id. A three-year look back period applied to her claim, as it was alleged that the violation was willful. 126 F.4th at 1256. (Non-willful violations have a two-year look back period.) Osborn claimed to have worked an average of 10 hours per day and 15 hours of overtime per week. When asked to describe her work, Osborn stated she “had to work outside of normal business hours to take support calls, respond to emails, drive to client sites, and ‘patch servers.’ ” She also claimed to work from time to time on the weekends. 126 F.4th at 1255.
Osborn admitted she did not track any time she worked over 40 hours. JAB Management admitted that it did not track her overtime either. Id.
District Court Decision
JAB Management moved for summary judgment. The district court ruled that Osburn could not carry her initial burden of showing a violation of the FLSA because she “failed to prove the amount and extent of her work, let alone work in excess of forty hours a week, as a matter of just and reasonable inference.” [Emphasis added.] 126 F.4th at 1258. Osborn appealed to the seventh circuit.
The Seventh Circuit’s Analysis
The seventh circuit first clarified that the burden of proof at summary judgment (Rule 56) differs from the “just and reasonable difference” standard, noting the just and reasonable inference standard ‘applies to damages questions only after an employee has met the initial burden to ‘establish[ ] liability.’ ” 126 F.4th at 1256.
A plaintiff must first establish employer liability. One only gets to the damages question if liability is assessed. To establish liability for overtime compensation, an employee must present evidence of the hours worked. This can be established through the employee’s testimony, which is what Osburn tried to do. However, to survive summary judgment, the employee’s evidence must place the employee’s version of events beyond the level of mere speculation or conjecture. As the seventh circuit noted, while employees need not describe their schedules “ ‘with perfect accuracy,’ they should be able to offer ‘testimony coherently describ[ing]’ their typical workweeks.” 126 F.4th at 1259.
When questioned at her deposition for details on what she did for 10 hours per day, Osborn responded vaguely that she worked on “[c]ustomer issues, the database, the reports, it is very labor intensive.” Id. While Osborn claimed to have coworkers who could testify regarding her workload, none provided such testimony. Id. The court found her claim of consistently working 15 hours of overtime per week to be inconsistent with her acknowledgement that the call volume declined, and her duties changed significantly over time. 126 F.4th at 1260.
Relying on case precedent from other circuits, the Seventh Circuit held, “[t]he evidence [the plaintiff] has produced fails to provide us with even a general sense of her typical workweek.” 126 F.4th at 1260. Further opining that, “[i]f this claim survived summary judgment, then any FLSA claim in which the employee vaguely describes [their] schedule as having exceeded forty hours per week would reach a jury.” Id.
Top 3 Takeaways for Employers
- Employers should not only rely on the work hours set forth in a job description as the specific hours worked for nonexempt employees.
- Conclusory and vague estimates about an employee’s average workweek, without more, do not permit a fact finder to conclude an employee worked overtime.
- Employees claiming unpaid overtime have a burden of producing at least some admissible evidence of their specific overtime hours worked and the duties they allegedly performed during those hours.
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