This is an appeal of a summary judgment granted to the defendant-appellee, Roth's I.G.A. Foodliner. The district court's opinion, which appears at 475 F. Supp. 630, sets forth the nature of the controversy.

Plaintiff-appellant, Forrester, contends that the district court erred in granting summary judgment to Roth's because the doctrine of equitable estoppel is inapplicable to Fair Labor Standard Act (FLSA) claims: and even if the doctrine is applicable, it had not been established in this case.

Although we agree that the grant of summary judgment to Roth's was appropriate, we affirm on a different basis.

Under the FLSA, no employer shall employ any of its covered employees for a work week that is longer than 40 hours unless that employee receives as compensation for his employment at least one and a half times the regular rate for all overtime hours. 29 U.S.C. § 207(a). An employer who violates this provision is liable to the employee for the overtime wage, as well as an additional equal amount as liquidated damages, and the court may allow a reasonable attorney's fee to be paid by the defendant, and costs of the action. 29 U.S.C. § 216(b).

As defined in 29 U.S.C. § 203(g), "`[e]mploy' includes to suffer or permit to work." "[T]he words `suffer' and `permit' as used in the statute mean `with the knowledge of the employer.'" Fox v. Summit King Mines, 143 F.2d 926 (9th Cir. 1944). Thus an employer who knows or should have known that an employee is or was working overtime must comply with the provisions of § 207. An employer who is armed with this knowledge cannot stand idly by and allow an employee to perform overtime work without proper compensation, even if the employee does not make a claim for the overtime compensation.

However, where an employer has no knowledge that an employee is engaging in overtime work and that 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.

In the present case, the officials of Roth's stated in their affidavits that they had no knowledge that Forrester had been working uncompensated overtime hours. 475 F. Supp. at 631. Forrester himself testified in his deposition that he "did not mention any unpaid overtime work to any store official prior to filing his complaint." Id. Forrester did not raise a genuine issue of material fact concerning whether any official of Roth's should have known about his alleged uncompensated hours. Further,

"Forrester knew that overtime was supposed to be reported on time sheets and that the store regularly paid for such reported overtime. Forrester Dep. 26, 28-29. Forrester himself was paid for all of the overtime he reported, which amounted to approximately 8 hours per week during the claim period. He testified that, had he reported the additional 10 hours per week of overtime work he now claims, he would have been paid. Forrester Dep. 60-61." Id.

Finally, Forrester presented an exhibit showing what he alleges is a contemporaneously compiled monthly list of unpaid overtime hours for the claim period.

We agree with the district court that no genuine issue of material fact had been raised as to whether any official of Roth's knew or should have known that Forrester had been uncompensated for overtime work he performed. Moreover, it is quite obvious that, besides not attempting to notify Roth's of his alleged uncompensated overtime hours, Forrester deliberately omitted the inclusion of those hours from his time sheet even though he admittedly knew that he would have been paid for those hours.

An employer must have an opportunity to comply with the provisions of the FLSA. This is not to say that an employer may escape responsibility by negligently maintaining records required by the FLSA, or by deliberately turning its back on a situation. However, where the acts of an employee prevent an employer from acquiring knowledge, here of alleged uncompensated overtime hours, the employer cannot be said to have suffered or permitted the employee to work in violation of § 207(a).

The district court's grant of summary judgment is therefore

AFFIRMED.

Summaries of

Forrester v. Roth's I. G. A. Foodliner, Inc.

United States Court of Appeals, Ninth Circuit

May 29, 1981

646 F.2d 413 (9th Cir. 1981)

holding that an employer "cannot stand idly by and allow an employee to perform overtime work without proper compensation"

Summary of this case from Richardson v. All. Residential Co.

holding that "where an employer has no knowledge that an employee is engaging in overtime work and that employee . . . deliberately prevents the employer from acquiring knowledge . . ., the employer's failure to pay . . . is not a violation of § 207."

Summary of this case from Bates v. Network of Cmty. Options

holding that employer is liable for off-the-clock work claim if it "knows or should have known" about it, "even if the employee does not make a claim for the overtime compensation"

Summary of this case from McLeod v. Bank of Am., N.A.

holding that the employer does not violate FLSA if the employer had no knowledge or reason to know and the employee fails to notify the employer or otherwise prevents the employer from finding out about the work

Summary of this case from Lillehagen, v. Alorica, Inc.

holding that there is no FLSA violation when the employee "deliberately prevents the employer from acquiring knowledge of the overtime work"

Summary of this case from Fulkerson v. Yaskawa Am., Inc.

holding that "where the acts of an employee prevent an employer from acquiring knowledge, here of alleged uncompensated overtime hours, the employer cannot be said to have suffered or permitted the employee to work in violation of [the FLSA]"

Summary of this case from Mencia v. Allred

holding that and employer's liability for off-the-clock overtime hinges on such knowledge

Summary of this case from Plaisted v. Dress Barn, Inc.

holding that plaintiff is estopped from asserting that he worked certain overtime hours, where he failed to accurately report them on his timesheets

Summary of this case from Seever v. Carrols Corp.

finding employer's actual or constructive knowledge of overtime work is required under the FLSA

Summary of this case from Van v. Language Line Servs., Inc.

finding no violation where the employee failed to record his overtime knowing he would have been paid if he had recorded it and the employer had no independent knowledge of the overtime

Summary of this case from Brubach v. City of Albuquerque

finding that an employee could not seek overtime pay when no evidence existed that his employer knew or should have known that he was engaging in overtime work

Summary of this case from WILKS v. PEP BOYS

affirming summary judgment for employer: "where an employer has no knowledge that an employee is engaging in overtime work and that employee ... deliberately prevents the employer from acquiring knowledge ..., the employer's failure to pay ... is not a violation of 207"

Summary of this case from Allen v. City of Chi.

affirming summary judgment for employer when employee failed to report overtime on timesheets

Summary of this case from Phillips v. Pearson's Painting, Inc.

affirming grant of summary judgment to employer where store employee was required to report overtime on time sheets, was paid for all hours he reported, and did not raise material issue of fact as to employer's knowledge

Summary of this case from Allen v. City of Chi.

affirming summary judgment for the employer where employee turned in time sheets that did not include overtime hours and did not show that the employer should have known that the employee worked more hours than those claimed on his time sheet, emphasizing that “where an employer has no knowledge that an employee is engaging in overtime work and the employee fails to notify the employer ... the employer's failure to pay for the overtime hours is not a violation of § 207.”

Summary of this case from Nieddu v. Lifetime Fitness, Inc.

affirming grant of summary judgment to employer where the employer's officials' affidavits stated that they had no knowledge of plaintiff's overtime work and plaintiff did not mention his overtime work to any official despite knowing that overtime should have been reported on his time sheets

Summary of this case from Caseres v. S&R Mgmt. Co.

affirming judgment for employer in case in which plaintiff "testified in his deposition that he 'did not mention any unpaid overtime work to any store official prior to filing his complaint'"

Summary of this case from Boelk v. AT&T Teleholdings, Inc.

affirming summary judgment for employer because employee did not demonstrate that employer should have known that he worked more hours than those claimed on his time sheets

Summary of this case from Mohammadi v. Nwabuisi

affirming summary judgment for employer

Summary of this case from Rogers v. Brauer Law Offices, PLC

In Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413, 414–15 (9th Cir.1981), the Ninth Circuit affirmed summary judgment for the employer because the employee had failed to report overtime hours and there was no evidence the employer should have known of the work.

Summary of this case from White v. Baptist Mem'l Health Care Corp.

explaining that knowledge affords an employer the opportunity to comply with the FLSA

Summary of this case from Kuebel v. Black Decker

In Forrester v. Roth's IGA Foodliner, 646 F.2d 413, 414 (9th Cir. 1981), this court held that "where an employer has no knowledge that an employee is engaging in overtime work and that 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 [the FLSA]."

Summary of this case from Rutti v. Lojack Corp.

In Forrester v. Roth's IGA Foodliner, 646 F.2d 413, 414 (9th Cir. 1981), this court held that "where an employer has no knowledge that an employee is engaging in overtime work and that 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 [the FLSA]."

Summary of this case from Rutti v. Lojack Corp.

explaining that knowledge affords employer the opportunity to comply with the Act

Summary of this case from Chao v. Gotham Registry, Inc.

stating that if "an 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 overtime hours is not a violation of § 207"

Summary of this case from North v. Gen. Plastics & Composites, L.P.

Forrester v. Roth's I. G. A. Foodliner, Inc.

Summary

Opinion

Forrester v. Roth's I. G. A. Foodliner, Inc.

Forrester v. Roth's I. G. A. Foodliner, Inc.

Case Details

Citations

Citing Cases

Forrester v. Roth's I. G. A. Foodliner, Inc.

Summary

Opinion

Forrester v. Roth's I. G. A. Foodliner, Inc.

Forrester v. Roth's I. G. A. Foodliner, Inc.

Case Details

CitationsCopy Citation

Citing Cases

Citations