Guidance for New York City employees on recordkeeping duties, burden-shifting, and proving unpaid overtime claims.
Accurate time and payroll records are required by both New York and federal law.
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Why Recordkeeping Matters in NYC Overtime Cases
At Rapaport Law Firm, PLLC, based in Manhattan, we represent employees in unpaid overtime and wage disputes throughout New York City and the surrounding counties. A recurring issue is what happens when an employer has not preserved accurate time and payroll records. Both New York law and the federal Fair Labor Standards Act (FLSA) impose recordkeeping obligations on employers—and courts do not penalize employees for the employer’s failure to keep those records.
New York Employment Record Retention Requirements
6 Years – Payroll Records. New York State imposes record retention requirements regarding wage payments, minimum wages, and hours worked. Under the New York Labor Law, employers must maintain accurate payroll records for at least six years. An employer’s obligation to maintain records includes records relating to each employee’s hours worked, gross wages, deductions, and net wages.
Federal Employment Record Retention Requirements
3+ Years – Fair Labor Standards Act (FLSA). The federal wage and hour law requires employers to retain accurate payroll records for the period of an employee’s employment plus three years. The U.S. Department of Labor’s Fact Sheet regarding the FLSA’s record retention requirements spells out exactly what information employers must preserve under the applicable federal regulations, 29 CFR Part 516. See: The U.S. Department of Labor’s Fact Sheet regarding the FLSA’s record retention requirements.
Employers Must Create, Keep and Preserve Accurate Time Records.
When an Employer Has Not Preserved Accurate Time Records, the Burden Shifts in Favor of the Employee
New York state and federal courts follow the rule that in wage and hour cases, the employer bears the burden of producing evidence of the precise amount of work an employee performed. When an employer fails to comply with recordkeeping obligations and cannot produce accurate records, the burden of proof shifts in favor of the employee. Practically speaking, this means an employee may rely on a reasonable recollection of hours worked to prove their case.
In a February 12, 2025 decision, the federal court in Brooklyn held that a plaintiff met her burden by testifying to the approximate number of hours she worked, on average, each week. The court cited Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), a landmark U.S. Supreme Court case which cautions courts not to make proving hours “an impossible hurdle for the employee.” The Court in Mt. Clemens recognized that employees are not expected to prove the “precise extent of uncompensated work” when the employer has failed to keep records, and that a reasonable inference based on credible evidence is sufficient.
What Evidence Helps in a New York City Overtime Claim?
- Personal notes, calendars, or phone logs showing start/stop times or total hours.
- Company schedules, timeclock screenshots, or timekeeping app history (if any).
- Paystubs, payroll summaries, or bank deposits showing wages paid versus hours worked.
- Emails, texts, or tasking systems reflecting off-the-clock work or late-night/early-morning activity.
- Co-worker statements corroborating work hours or practices.
Even if formal timecards are missing, these materials may support a reasonable estimate of the hours you worked in New York City.
Considering an Overtime Claim in NYC?
If you believe you were not paid 1.5× your regular rate for overtime hours, we invite you to speak with our team. We have represented New Yorkers in wage and hour matters for decades and understand how courts treat missing records.
New York wage and hour lawyers
This article is for general information only and is not legal advice. Outcomes depend on specific facts. If you have questions about your situation, please contact our office.