Eleventh Circuit Establishes Sufficiency of Employer-Produced Records and Employee Averages in FLSA Overtime Claims

Introduction

This commentary examines the Eleventh Circuitʼs per curiam opinion in Sydney Marie Keefe v. Brittʼs Bow Wow Boutique, Inc., No. 23-14024 & 24-11252 (11th Cir. May 23, 2025). At trial in the Southern District of Florida, plaintiff‐appellee Sydney Keefe prevailed on her claim that defendant‐appellants Brittʼs Bow Wow Boutique, Inc. (“BBWB”) and its owner Merri “Chris” Colvard willfully violated the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201 et seq., by failing to pay overtime. Keefe introduced both her own testimony about an average 74-hour workweek and the employer’s own QuickBooks and ADP payroll records. The jury awarded $52,000 in unpaid overtime, doubled to $104,000 for liquidated damages. The district court also denied defendants’ post-trial motions for judgment as a matter of law, a new trial, and remittitur, and awarded Keefe costs ($12,575.63) and attorney’s fees ($78,337.50). Defendants appealed on multiple grounds. The Eleventh Circuit affirmed in full.

Summary of the Judgment

On appeal, BBWB and Colvard challenged:

the sufficiency of the evidence to prove unpaid overtime and willfulness;
the admission of employer-produced records that Keefe failed to disclose in her own discovery responses;
the district courtʼs admission of an illustrative “chart” during closing argument;
the denial of a continuance to respond to Keefe’s late exhibit list;
the denial of remittitur and post-trial relief;
and the award of costs and attorney’s fees.

The Eleventh Circuit rejected each argument:

Keefe met her Anderson v. Mt. Clemens burden by proving she worked uncompensated overtime (an average of 34 overtime hours weekly) and producing non-speculative evidence of unpaid wages based on the employer’s own records.
The jury could infer BBWB’s actual knowledge of unrecorded overtime from Keefe’s testimony, text messages complaining of unpaid hours, and BBWBʼs ad hoc Venmo and cash payments outside the ADP system.
Rule 37(c)(1) did not bar use of BBWBʼs own records merely because Keefe herself did not disclose them in her interrogatory answers.
The illustrative aid (a damages chart) was properly used under the court’s broad evidentiary gatekeeping power (Fed. R. Evid. 611(a)), did not introduce new evidence, and carried no unfair prejudice.
The denial of a two-week continuance was reasonable given that defendants themselves delayed conferring on the pretrial stipulation, all listed exhibits had already been produced in discovery, and only four of 132 exhibits were ultimately used.
The jury’s $52,000 award (doubled to $104,000 for liquidated damages) fell within permissible proof, and the willfulness finding foreclosed any good-faith defense under 29 U.S.C. § 260.
As the prevailing party, Keefe was entitled to costs under Fed. R. Civ. P. 54(d)(1) and taxable copying costs under 28 U.S.C. § 1920(4). The district court reasonably taxed photocopying (discovery, trial binders) at local prevailing rates, and accepted a sworn chart as adequate substantiation.
The court also properly applied the Lodestar method to award attorney’s fees: a reasonable rate of $375/hour (down from the requested $400) and reduced billed hours from 299.5 to 208.9 after excluding hours for Defendants’ own discovery failures, filings of extensions, and counterclaims.

The panel held no reversible error or abuse of discretion occurred and affirmed the judgment, costs, and fees in their entirety.

Analysis

Precedents Cited

Anderson v. Mt. Clemens Pottery Co. (328 U.S. 680 (1946)): established the burden-shifting framework in FLSA overtime cases. An employee need only prove she performed unpaid work and produce evidence “as a matter of just and reasonable inference”; then the employer must show the precise hours or negate the inference.
Allen v. Board of Public Education for Bibb County (495 F.3d 1306 (11th Cir. 2007)): held that employees can rely on testimony estimating regular unpaid hours, even when precise records are lacking, especially when the employer controls timekeeping.
Lamonica v. Safe Hurricane Shutters, Inc. (711 F.3d 1299 (11th Cir. 2013)): confirmed that a range testimony of weekly overtime hours suffices to reach a jury on unpaid wages.
Alvarez Perez v. Sanford-Orlando Kennel Club, Inc. (515 F.3d 1150 (11th Cir. 2008)): explained liquidated damages under § 260 and held that a jury’s willfulness finding bars a court from excusing liquidated damages on “good faith” grounds.
Federal Rules of Civil Procedure 26(a)(1), 37(c)(1): govern discovery disclosures and sanctions for nondisclosure. The panel clarified that Rule 37 does not preclude use of materials produced by the opposing party, even if the non-producing party failed to list them.
Federal Rules of Evidence 611(a) & 107 (2024 amendment): permit “illustrative aids” in argument to foster jury understanding absent unfair prejudice or misleading effect.

Legal Reasoning

The Eleventh Circuit reaffirmed that in FLSA overtime actions:

An employee satisfies her initial burden by showing “she in fact performed work for which she was improperly compensated,” supported by non-speculative evidence of the amount and hours—here, her own testimony of 74 average hours weekly corroborated by Bard-authority records (QuickBooks and ADP).
Because BBWB’s records were inaccurate or incomplete (e.g., no ADP overtime entries, ad hoc Venmo and cash payments not tracked), the burden shifted to BBWB to produce precise evidence or refute the inference—which BBWB did not do.
Knowledge of unreported overtime can be established by evidence of repeated complaints, text messages, supervisory control, and pay practices—satisfying the mens rea requirement for willfulness under 29 U.S.C. § 255(a).
Once a jury finds willful violation, liquidated damages are mandatory absent strong proof of “good faith,” which was not carried here.
Discovery sanctions under Rule 37(c)(1) do not extend to using an opponent’s produced documents; only failure to disclose one’s own materials justifies exclusion.
Illustrative aids in closing argument (the damages chart) are permissible if they rest on admitted evidence and do not inject novel facts.
Continuance requests are reviewed for abuse of discretion based on diligence, prejudice, and inconvenience; here, defendants contributed to the late exhibit list and suffered no undue prejudice.
Remittitur is only proper when a jury award exceeds the maximum supported by evidence; here, the $52,000 (and doubled liquidated damages) fell within permissible proof.
The prevailing‐party presumption in Rule 54(d)(1) applies to FLSA costs; copying costs are taxable when necessary and reasonably substantiated, even if supplied via a sworn chart. Attorney’s fees under the Lodestar approach must be examined for reasonable rates and hours.

Impact

This decision provides important guidance in FLSA overtime litigation:

It confirms that employee estimates of weekly hours, backed by employer-generated records, suffice to carry a claim past summary judgment and to the jury.
It clarifies that discovery sanctions cannot block an employee’s use of employer-produced documents to prove unpaid wages.
It reinforces the mandatory nature of liquidated damages once willfulness is found.
It endorses the use of illustrative aids in closings so long as they rest on admitted proof.
It demonstrates the standard for awarding costs and attorney’s fees in FLSA cases, emphasizing careful line-item review of hours and reasonableness of rates.

Complex Concepts Simplified

FLSA Overtime Premium: Employers must pay non-exempt employees 1.5× their regular rate for each hour over 40 in a workweek.
Anderson/Mt. Clemens Burden-Shifting: Plaintiff shows unpaid work and a reasonable inference of hours; employer must then show actual hours or rebut the inference.
Liquidated Damages: A second award equal to unpaid wages, presumptively mandatory unless an employer proves it acted in good faith and reasonably thought it complied with the FLSA.
Rule 26(a)(1) Disclosures: Parties must list their claimed damages and the documents supporting each computation.
Rule 37(c)(1) Sanctions: Failure to disclose discovery materials can bar their use at trial, but only if the materials originally belonged to the non-producing party.
Illustrative Aids: Charts, diagrams, and summaries used in argument (not admitted as evidence) to help jurors understand complex calculations or timelines.
Remittitur: Reducing a jury’s award when it exceeds the maximum supported by the evidence; courts defer to the factual record viewed in the light most favorable to the verdict.
Lodestar Method: A two-step fee calculation multiplying reasonable hours by a reasonable hourly rate, then adjusting for results obtained and other factors.

Conclusion

The Eleventh Circuit’s decision in Keefe v. Britt’s Bow Wow Boutique clarifies critical aspects of FLSA overtime litigation. It underscores that an employee may rely on average-hour estimates against incomplete employer records, and that the employer’s own documents are fair game even if not disclosed by the employee. By affirming the willfulness finding and mandatory liquidated damages, and by upholding costs and reasonable attorney’s fees, the court advances the FLSA’s remedial purpose: ensuring workers receive all wages lawfully earned and deterring willful underpayment.