An argument that has been used around the country in defending wage-and-hour lawsuits says that if an employee is complicit in inaccurately reporting how many hours he has worked, he shouldn’t be allowed to turn around and sue his employer over this issue. In January, in what appears to be the first federal appellate ruling to address this defense tactic directly, the U.S. Court of Appeals for the Eleventh Circuit rejected its use in a defense motion for summary judgment.
V. Severin Roberts of Barrett & Farahany in Atlanta, who made the winning argument for the plaintiff in Bailey v. TitleMax of Georgia, says that defense attorneys essentially have tried to shift to employees the responsibility of complying with the Fair Labor Standards Act (FLSA). The decision “does away, at least for summary judgment purposes, with that argument,” says Roberts. “It’s just not going to cut it after this decision.”
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