If your employer kept no records, that works against them

Most people in this situation start from the same assumption: without a written contract, there is nothing to stand on.

That assumption is wrong, and the way it is wrong is worth understanding, because federal law puts the paperwork burden on the employer rather than on you.

If the records are missing, the missing records are the employer's problem.

There is no federal right to a written contract

Employment in the US is generally at will and no federal statute requires a written employment agreement. Some states and cities require written wage notices at hire, but there is no nationwide equivalent.

What federal law does require is recordkeeping. Under 29 U.S.C. §211(c), employers must keep accurate records of wages, hours and working conditions for non-exempt employees. The regulations at 29 CFR §516 specify exactly what and for how long.

An employer who fails to keep those records has already violated the FLSA, independent of whether they paid you correctly.

And that failure has a consequence

This is the part most workers never hear.

In Anderson v. Mt. Clemens Pottery Co. (1946), the Supreme Court held that where an employer has failed to keep the records the statute requires, the consequences fall on the employer, not the employee. The rule still governs today and is the most-cited case in federal wage-and-hour litigation.

Practically it works like this. You show you performed work you were not properly paid for, and produce enough evidence to establish the amount as a matter of just and reasonable inference. The burden then shifts to the employer to produce precise records or to disprove the reasonableness of your estimate.

If they cannot, a court can award damages based on your approximation. As the Court put it, an employer who chose not to keep the records the law demands cannot complain that the damages lack the precision his own records would have provided.

Your own reasonable estimate can be enough. Which is exactly why keeping one matters.

The clock, and what it is worth

Two years, or three if willful. Under 29 U.S.C. §255(a), the FLSA limitations period is two years from each violation, extended to three where the employer knew the conduct was prohibited or showed reckless disregard.

An employer’s failure to keep records can itself support an inference that the violation was intentional — which is how the missing records extend the reach-back by a year.

State law can reach further. California can reach four years through its unfair competition statute; New York labor law reaches six.

Recovery is often doubled. The FLSA provides liquidated damages equal to the unpaid amount, plus attorney’s fees and costs in a private suit. Massachusetts mandates treble damages within its three-year window.

Deadlines are hard. In a 2025 appellate case a jury found the plaintiff had not been paid minimum wage, but because willfulness was not proven the two-year limit barred the claim entirely. Filing late is not a partial loss; it is a total one.

Filing costs nothing

You can file a complaint with the US Department of Labor’s Wage and Hour Division, which can supervise payment of back wages, and in many states with the state labor department as well. There is no filing fee.

Doing it early matters. If the administrative route does not resolve the claim, you still need time left on the clock to sue.

What the record actually needs to cover

Two different things get disputed, and people usually prepare for only one.

How many hours you worked. Your own contemporaneous log, badge or app data, schedules, texts about covering shifts.

What you were promised you would be paid. And this is where written evidence usually runs out, because the terms were set in a conversation.

“It’s twenty an hour to start, and we’ll bump you after ninety days.” “The first two weeks are training, so that’s at a lower rate.” “Tips get pooled, but you’ll come out ahead.” “We’ll do the paperwork once you’ve settled in.”

None of that is written anywhere. And when it is disputed, you are the one who has to establish that it was said.

The same rule read from the other side

Everything above is also a description of an employer’s exposure, and small employers are the ones who tend to learn it late.

The recordkeeping duty is not optional and not satisfied by payroll alone. 29 CFR §516 specifies what must be kept — hours worked each day and each workweek, pay rates, total sums paid — and for how long. Practitioners commonly advise retaining time records for three years rather than two, so the retention period matches the maximum reach-back for a willful claim.

Missing records do not create a stalemate; they hand the estimate to the other side. That is the whole point of Mt. Clemens. Without records, an employer has nothing to rebut a former employee’s sworn account of typical hours.

Sloppy recordkeeping can look intentional. An inference of willfulness extends the limitations period from two years to three, so the same gap that weakens the defense also widens the window.

Verbal offers cut against employers too. An employer who described the pay structure accurately in an interview and then faces a claim that something different was promised is in the same position as the worker in the mirror image of this problem: the conversation happened, and nothing recorded it.

Practically, the safest habits are the unglamorous ones — put the offer in writing before the first shift, keep contemporaneous time records rather than reconstructing them later, and document any change to rate or schedule when it happens rather than at the end of the year.

Keeping the part that was only spoken

The written route comes first. Ask for the terms in writing before starting, and if nothing arrives, send a message: just confirming — $20/hr, roughly 25 hours a week, paid biweekly. A reply is a record. So is your own log of hours, written the same day.

What that cannot cover is the hiring conversation itself, in real time, where you do not yet know which sentence you will need.

TalkSafe covers that differently. You set a few words in advance, and recording starts when one of them is heard. It starts with the screen locked — the phone stays in a pocket through the interview.

The words do not have to be ones you say. Set what a manager is likely to say — an hour, training rate, overtime, tips, paperwork, schedule — and the moment the terms come up is the moment recording begins.

Because the 30 seconds before that point are saved as well, a figure mentioned just before you registered its importance is still in the file.

A few notes

A notification stays visible while recording and cannot be switched off. This is for keeping a record of a conversation you are part of.

Recording law varies by state — most allow a participant to record; about a dozen require everyone’s consent. Covered separately.

Log your hours daily. Given the Mt. Clemens rule, a contemporaneous personal log is the single highest-value thing you can do. Date, start, end. A notes app is enough.

Retaliation is separately illegal, and a retaliation claim carries its own two-year window from the retaliatory act, three if willful.

Whichever side you are on, the useful habit is the same: write down what was agreed, at the time it was agreed.

General information, not legal advice. Wage and hour rules vary by state; for a specific situation, consult an employment lawyer or your state labor department.