MEMORANDUM OPINION

John F. Grady, United States District Judge

The court tried this case several months ago and took under advisement the difficult question of what to do about the fact that the defendant retained no records of the time worked by its employees for the periods in question. Edward Kerfin, who was president of the defendant, testified that the time records must hays been thrown away, and this was because the defendant had what it considered sufficient affidavits signed by its employees. The affidavits state that the employees were paid in full; they do not state the number of hours or weeks the employees worked.

In addition, the defendant's witnesses testified that all wages were paid by checks written on the business checking account. Checks were issued each week for work done the previous week. No wages were paid in any other way, and therefore, in defendant's view, the check register and cancelled checks are a satisfactory record of the time worked by its employees.

The relevant statute, 29 U.S.C. § 1059 (a)(1) requires the employer to "maintain records with respect to each of his employees sufficient to determine the benefits due or which may become due to such employees." Failure to maintain adequate records shifts to the employer the burden of proving the amount of covered work performed and the contributions owed. Michigan Laborers' Health Care Fund v. Grimaldi Concrete, Inc., 30 F.3d 692, 695-96 (6th Cir. 1994). The parties do not disagree that in this case the burden has shifted to the defendant. What they disagree about is whether the defendant has met its burden.

We agree with the plaintiffs that the evidence offered by the defendant is insufficient to show what contributions were owing for which employees during the periods in question. Defendant's witnesses may well be telling the truth when they say that the checkbook reflects every week in which any employee worked in covered employment. This would be true if in fact no work was done that was not paid for with a check and no other form of payment was used. The problem is that the significance of the checkbook depends entirely upon the credibility of the defendant's witnesses. Of itself, the checkbook proves nothing and cannot be regarded as a "sufficient" record of the benefits due. The testimony of defendant's witnesses is an inadequate substitute for the records the statute requires. While there is no evidence that defendant paid employees in cash, or with checks drawn on a different account, or that there are unpaid wages still owing, these possibilities exist. The point of the statute is that the employer should do its best to maintain accurate records that will show all covered work. There is no provision for reliance on oral assurances. Here, the defendant threw away the time records that would ordinarily be the best evidence of the time worked. It is difficult to understand this, especially in light of the fact that the defendant had previously been sued for unpaid contributions. The time periods covered in this case are subsequent to those involved in that earlier suit.

The affidavits provided by some of defendant's employees have been accepted by plaintiffs, since the employee "will be bound by his affidavit and will not be able to claim later that he worked additional hours and is entitled to additional pension credits." Plaintiffs' Reply at 3. Plaintiffs point out, however, that "if an employee has not submitted an affidavit, nothing will prevent that individual from claiming credit for work he performed which American Lighting failed to report." Id. We agree with the plaintiffs that they should not be placed in that position and that the defendant must assume responsibility for the uncertainty it has created by its failure to maintain adequate records.

The approach taken by plaintiffs' accountant, Timothy Beelan, was to assume that any employee who worked any day during a period in question worked 40 hours during each week of that period. Plaintiffs cite a number of cases to support this approach, e.g. Michigan Laborers' Health Care, 30 F.3d at 696-97.

In most of the cited cases, the employer's records showed the time worked but failed to indicate whether the work was covered by the plan. The cases approved an assumption that all work shown by the records was covered. In the present case, we have a more extreme situation. The records are insufficient to show what time was worked, covered or not. But we think the same approach is appropriate. Defendant created the problem, and, while there is no perfect solution, we think that Mr. Beelan's assumption is preferable to simply accepting the defendant's testimony that the checkbook amounts to an accurate record. The closest case cited by the parties is Sheet Metal Works International Ass'n., Local No. 33 v. Tate, 65 Ohio Misc.2d 48, 640 N.E.2d 1219 (1993). The employer's time records indicated the number of hours worked by the employees but failed to distinguish between covered and any non-covered work. The court applied the presumption that all recorded hours were in covered employment. As to the two partners who owned the business, however, there were no time records at all. The court held that plaintiff was entitled to recover contributions "for 40 hours weekly" for each of the two partners. 640 N.E.2d at 1226.

We agree with plaintiffs that the most appropriate solution in this case is to hold the defendant liable for contributions based upon the assumption that any employee who worked one day during a period worked 40 hours in every week of the period. In other words, we adopt Mr. Beelan's approach to the problem.

The parties may now prepare an appropriate judgment order setting forth the amounts owed. The court will also award plaintiffs their reasonable attorneys' fees and reserve a determination of the amount until the parties have had recourse to our Local Rule 54.3. Should it become necessary for plaintiff to file a fee motion, it should be filed no later than May 31, 2002.

The judgment order (reserving the question of fees) should be submitted by May 1, 2002.