When the employee later claims that they were not paid overtime, the company points to the written policy and blames the employee for not accurately recording hours worked on their time sheet. The company claims that no overtime had been approved, that the employer had no way of knowing the employee was working any overtime, and that the employee is lying about the number of overtime hours they worked.

The Second Circuit Court of Appeals recently recognized this trick in Kuebel v. Black & Decker (U.S.) Inc., decided on May 5, 2011. The Court stated:

At least where the employee’s falsifications were carried out at the instruction of the employer or the employer’s agents, the employer cannot be exonerated by the fact that the employee physically entered the erroneous hours into the timesheets. As the district court emphasized, Kuebel admits that it was he who falsified his timesheets, notwithstanding [the Companies] official policy requiring accurate recordkeeping.  But his testimony, which must be credited at the summary judgment stage,  was that he did so because his managers instructed him not to record more than forty hours per week. He specifically testified that at company meetings and during discussions with one of his supervisors, it was conveyed to him that he was not to record overtime no matter how many hours he actually worked. In other words, Kuebel has testified that it was B&D, through its managers, that caused the inaccuracies in his timesheets.

Sound familiar?  Company policies are often written by lawyers or human resource professionals, whose goal is to make it look as if the company is following the law. In reality, these individuals are often so far removed from the workers that they have never even been on an actual job site. The Second Circuit’s opinion indicates that courts are catching on to employers tricks, and that they will not be tolerated.