5th Cir. Pattern Jury Instr. (Civil) 11.24

278

putes over the number of hours worked and damages

are for the jury to decide.

b. Recordkeeping

The FLSA requires employers to “make, keep and

preserve records” of an employee’s hours. 29 U.S.C.

§ 211(c). The employee has the burden of proving the

hours worked for which he or she was not properly

compensated. Anderson v. Mt. Clemens Pottery Co. , 328

U.S. 680, 686–87 (1946), superseded by statute on other

grounds, 29 U.S.C. § 251. When an employer’s records

are “inaccurate or inadequate,” the employee may

satisfy the burden by proving that he or she performed

work that was improperly compensated and producing

“sufficient evidence to show the amount and extent of

that work as a matter of just and reasonable inference.”

Anderson, 328 U.S. at 687. “The burden then shifts to

the employer to come forward with evidence of the

precise amount of work performed or with evidence to

negate the reasonableness of the inference to be drawn

from the employee’s evidence.” Anderson , 328 U.S. at

687–88; see also Johnson v. Heckmann Waster Res.

(CVR), Inc. , 758 F.3d 627, 630 (5th Cir. 2014) (citing

Harvill v. Westward Commc’ns, LLC , 433 F.3d 428, 441

(5th Cir. 2005)).

c. Hours Worked

The FLSA requires that employees be paid for all

hours worked. “Work” is broadly defined as ‘‘ ‘physical

824. For overtime claims involving an employee who is paid a constant

salary for a specific number of hours, the instruction should be based upon

29 C.F .R. § 778.113(a). For overtime claims involving an employee who is

paid a constant weekly salary for fluctuating hours, it may be necessary to

instruct on the “fluctuating workweek method.” See Hills v. Entergy Operations, Inc. , 866 F .3d 610, 614–15 (5th Cir. 2017) (whether an employer and

an employee agreed to a fixed weekly wage for fluctuating hours is a question of fact, and the employee has the burden to show that the fluctuating-

workweek method is inapplicable) (citation omitted); Lamonica v. Safe

Hurricane Shutters, Inc. , 711 F .3d 1299, 1310–11 (11th Cir. 2013); see also

29 C.F .R. § 778.114 (explaining how to use the fluctuating workweek

method).

11.24EMPLOYMENT CLAIMS

279

or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and

his business.’ ” Bridges v. Empire Scaffold, LLC , 875

F.3d 222, 225–26 (5th Cir. 2017) (citing Tenn. Coal,

Iron & R. Co. v. Muscoda Local No. 123 , 321 U.S. 590,

598 (1944); Integrity Staffing Sols., Inc. v. Busk , 135 S.

Ct. 513, 516–17 (2014); and IBP, Inc. v. Alvarez , 546

U.S. 21, 29–30 (2005)). Typical issues in “off-the clock”

cases include whether unpaid and usually unrecorded

hours for preparatory and concluding activities (“donning and doffing”), travel, waiting, and rest or meal

periods are compensable.

To recover for overtime hours the employee claims

he or she worked without proper compensation, the employee must demonstrate that the employer “had knowledge, actual or constructive, that he was working”

overtime. Fairchild v. All Am. Check Cashing, Inc. , 815

F.3d 959, 964 (5th Cir. 2016) (quoting Newton v. City of

Henderson, 47 F.3d 746, 748 (5th Cir. 1995)). Constructive knowledge exists if an employer “exercising reasonable diligence” would become aware that an employee

is working overtime. Brennan v. Gen. Motors Acceptance Corp. , 482 F.2d 825, 827 (5th Cir. 1973). But if

the “employee fails to notify the employer or deliberately

prevents the employer from acquiring knowledge of the

overtime work, the employer’s failure to pay for the

overtime hours is not a violation of § 207.” Newton,4 7

F.3d at 748.

d. Limitations

The statute of limitations for an unpaid-overtime

FLSA claim is generally two years. 29 U.S.C. § 255(a).

The limitations period is extended to three years for

willful violations. 29 U.S.C. § 255(a). To prove willfulness and obtain the benefit of the three-year limitations

period, an employee must establish that the employer

“either knew or showed reckless disregard as to whether

its conduct was prohibited by the [FLSA].” Cox v. Brook-