This is one of the questions we get most here at The Hayber, McKenna & Dinsmore. The answer is yes. If you have been told that you are not entitled to overtime pay because you are an “exempt” employee, than naturally, you will probably not record the number of hours that you work. The courts understand this issue, and the fact that it creates a problem for misclassified employees– if your employer tells you you’re not entitled to overtime, you won’t record your hours; and if you don’t record your hours, you can’t allege specifically how many hours you worked when you sue for unpaid overtime.
The solution to this problem is that if an employer turns out to have misclassified an employee, if the employer did not keep accurate records of the employee’s time, then the employee is entitled to a reasonable guess. (In legal terms, “a presumption arises in favor of the employee’s statement as to the hours allegedly worked.”) The employer may rebut this presumption by showing that it’s not reasonable (if it has records showing, for example, that you took eight vacations in a year during weeks you claimed to be working overtime), but it can’t argue that your claim fails because you can’t tell it precisely how much money you’re owed. That’s the employer’s job.
Think you might have an unpaid overtime claim? Contact the Hayber, McKenna & Dinsmore!