A distinct trend in labor courts: Analysis by Oketz Systems of 86 verdicts from recent years reveals that in 85% of cases, employers were ordered to pay overtime due to a failure to properly maintain a time log, even in the absence of solid evidence from the employee. In some cases, employers were ordered to pay hundreds of thousands of shekels.
The obligation to maintain an attendance log is anchored in Section 25 of the Hours of Work and Rest Law. The section imposes personal responsibility on the employer to maintain ongoing records of actual working hours, weekly rest, overtime hours, and their remuneration. The preferred default is digital or mechanical registration, but the law also permits manual registration, subject to a daily approval signed by the employee and a representative on behalf of the employer. While many employers comply strictly with the law, those who choose to cut corners discover that they have unintentionally granted employees immense power. According to the analysis conducted, a claim for overtime pay in the absence of orderly registration by the employer will almost always end in a victory for the employee, and in the ruling of high financial compensation for them.
Thus, for example, the Jerusalem Regional Labor Court awarded compensation of approximately NIS 278 thousand to a resident of the Palestinian Authority who was employed in a clothing store in East Jerusalem. The employee was employed for 38 months at a monthly salary of only NIS 2,000 paid in cash, without pay stubs, an employment contract, or a notice of terms of employment. The verdict was given despite the fact that the employee resigned after being suspected (and even admitting) of taking NIS 500 from the register, as the court ruled that suspicion of theft does not exempt employers from their basic obligations under labor laws.
Judge Sarah Broiner Yashrzada rejected the attendance logs presented by the employers as unreliable, and accepted the employee’s claim that she worked 12 hours a day, six days a week. Since the employers did not maintain proper records, the burden of proof shifted to them and they failed in it. The total compensation consists of minimum wage and overtime differentials (approximately NIS 224 thousand), convalescence pay, pension, and compensation for the absence of pay stubs and notice to the employee, plus legal expenses.
In another case, the labor court ordered a trucking company to compensate a former driver a massive sum of approximately NIS 409 thousand for non-payment of overtime. The driver claimed that he worked 12 hours a day, but the employer did not maintain an hour log as required by law. It was determined that the “overtime” components in the pay stubs were fictitious, as the net salary remained fixed at NIS 12 thousand regardless of actual work. In the absence of attendance records, the burden of proof shifted to the employer. Since it failed, the employee was awarded remuneration for the maximum quota in the law.
Adv. Ilan Kaminetsky, a labor law expert representing employers, clarifies that employment on overtime grants the employee a significant statutory remuneration (125% for the first two hours and 150% for every additional hour). Refraining from paying this right over time creates an immense financial exposure; since most employees refrain from suing during their period of employment and file it only upon its termination, employers are forced to deal retroactively with massive lawsuits of tens and hundreds of thousands of shekels, which sometimes span the full 7-year statute of limitations.
According to him, Amendment 24 to the Wage Protection Law stipulates that in claims for overtime, an employer who does not present attendance records from an orderly work log will bear the burden of persuasion to prove that the employee did not perform these hours. Insofar as the employer fails to lift the burden of proof, the presumption of the law dictates that the employee performed 60 overtime hours each month.
Kaminetsky further notes that an employer who believes they can “save” themselves from an overtime lawsuit solely through location-tracking reports, despite not maintaining attendance reports as required by law – is mistaken. Location tracking is at most complementary evidence, and does not replace the obligation to maintain attendance records and the burden of proof imposed on the employer in their absence.
According to Kaminetsky, there is currently a long series of technological solutions for attendance reporting, both from the office, from home, and at customer premises – so even a claim regarding a technical inability to maintain attendance registration will likely not hold. The bottom line – this is a relatively simple task to perform, adherence to which prevents double legal exposure, both from lawsuits and from legal proceedings by the labor arm: Failure to maintain or register working hours in an improper manner could lead to financial sanctions.
Source:
www.jpost.com
