Category Archives: Work Time

S.D.Tex.: Defendant (Group Home) May Not Exclude Sleep Time Where Plaintiff Was Not On Premises for “Extended Periods of Time”

Boman v. All The Little Things Count, L.L.C.

This case was before the court on plaintiff’s motion for summary judgment. As discussed here, plaintiff asserted that the defendants—a group home and it’s individual owner—were not entitled to exclude any time within plaintiff’s scheduled shifts, because plaintiff did not reside on defendants’ premises for an “extended period of time” as defined by the C.F.R. regulations applicable to the situation. Analyzing the applicable regulations and 2 DOL opinion letters, the court concluded that the plaintiff was correct and granted her motion for summary judgment—holding that defendants improperly excluded eight hours per shift, because same were compensable under the FLSA.

Describing the issue before it the court explained:

Plaintiff Lori Boman works as a supervised living provider at a residential group home operated by Defendants All The Little Things Count, L.L.C. and Sandra Graves. She filed this case under the Fair Labor Standards Act (“FLSA”), seeking to be paid for the time she is required to be at the group home, but during which she may sleep. Defendants do not pay Boman for her designated sleep time, even when she has to wake up in the middle of the night to handle an incident. The parties agree on the facts concerning Boman’s weekly work schedule and designated sleep times, but dispute how Department of Labor (“DOL”) regulations apply to those undisputed facts.

Per the stipulated facts:

[Plaintiff] begins work at 3:00 p.m. for four consecutive days, Monday through Thursday, and leaves at 9:00 a.m. the next morning, so that she finishes the work week on Friday. The hours on these shifts between 11:00 p.m. and 7:00 a.m. are deemed unpaid sleep time. During these sleep-time hours, Boman is required to stay on the premises and assist the clients as needed through the night. Defendant provides Boman with her own sleeping quarters to use during the overnight hours, which consist of a sleeping area, a sitting area, a dresser, a nightstand, a small couch, a desk, and a television. According to Boman, her supervisor told her not to record the instances in which her sleep was interrupted during the night to assist residents, interruptions that could last from ten minutes to over an hour.

After a brief discussion of the general rule pertaining to when sleep time is deemed compensable work under the FLSA, the court examined the more specific regulation pertaining to the facts at issue in the case:

Defendants contend that they do not have to pay Boman for her sleep time because she resides at the facility for an “extended period of time” within the meaning of section 785.23. The DOL has issued two interpretations defining what constitutes an extended period of time in the group home industry. The first, a 1981 DOL Opinion Letter, states the following:

[W]here employees are on duty for less than 120 hours in a week, they can be considered as residing on the employer’s premises, provided that they spend five consecutive days or five consecutive nights on the premises. This rule can best be illustrated by concrete examples….

Employees who are on duty from 9 a.m. Monday until 5 p.m. Friday would also be considered to reside on the employer’s premises. Even though on duty for less than 120 hours, they are on duty for five consecutive days (Monday through Friday). The fact that they sleep over only four nights does not matter. Similarly, employees who are on duty from 9 p.m. Monday until 9 a.m. Saturday would also be considered to reside on their employer’s premises since they are on duty for five consecutive nights (Monday night through Friday night).

Opinion Letter Fair Labor Standards Act (FLSA), WH–505, 1981 WL 179033 (Dep’t of Labor Feb. 3, 1981). Defendants contend that Boman’s work schedule satisfies this Opinion Letter’s “five consecutive days” standard because, excluding the sleep time, she is on duty from 3:00 p.m. until 11:00 p.m. on Monday through Thursday, and then from 7:00 a.m. until 9:00 a.m. on Friday. A full reading of the 1981 Opinion Letter, however, casts doubt on whether a single shift that starts on Thursday but carries into Friday would count as two “consecutive days.”

But the Court need not decide the outcome of this case under the 1981 Opinion Letter, because the DOL provided further guidance in 1988 that speaks directly to this question. The 1988 Wage and Hour Memorandum provided “further clarification and guidance as to the conditions under which” the DOL’s Wage and Hour Division “will not require that sleep time [of group home employees] be compensated.” Wage and Hour Memorandum 88.48, 1988 WL 614199 (Dep’t of Labor June 30, 1988). This Memorandum cites the 1981 Opinion Letter and “refine[s] and restat[es] the minimum conditions required” to constitute an “extended period of time”:

An employee will be found to reside on the premises for extended periods of time if:

(1) The employee is on duty at the group home and is compensated for at least eight hours in each of five consecutive 24–hour periods; and

(2) The employee sleeps on the premises for all sleep periods between the beginning and end of this 120–hour period.

Id.

Applying 785.23, based upon the above-referenced opinion letters, the court reasoned:

Boman’s schedule does not satisfy the first requirement because she is not “on duty [and] compensated for at least eight hours in each of five consecutive 24–hour periods.” Id. The 24–hour period starts when she reports for duty on Monday at 3:00 p.m. She is compensated for at least eight hours in the first period through 3:00 p.m. Tuesday; at least 8 hours in the second period through 3:00 p.m. Wednesday; at least 8 hours in the third period through 3:00 p.m. Thursday; and at least 8 hours in the fourth period through 3:00 p.m. Friday. But she does not work after that fourth period, and thus is not considered to reside at the group home for an extended period. See Nelson v. Ala. Inst. for Deaf and Blind, 896 F.Supp. 1108, 1112 (N.D.Ala.1995) (holding that plaintiffs did not reside at their employer’s premises for an extended period in part because they did not work “for at least 8 hours in each of five consecutive 24–hour periods”). The examples provided in the 1988 Memorandum further support this determination. See 1988 Memorandum, 1988 WL 614199 (explaining that “an employee who is on duty and is compensated from 6:00 a.m. to 9:00 a.m. and 5:00 p.m. to 10:00 p.m., Monday through Friday, and who sleeps Monday through Thursday nights on the premises, would be considered to reside on the premises for extended periods of time”). The DOL’s 1988 interpretation of its sleep-time regulations therefore demonstrates that Boman was not staying at the group home for a period of time lengthy enough to be considered “extended,” in which the employer’s premises becomes a kind of second home where the employee enjoys considerable “freedom.” 29 C.F.R. § 785.23.

Defendants do not dispute this calculation but instead argue that the 1988 interpretation applies only to “relief workers” and not full-time employees like Boman. Although the 1988 Memorandum does discuss relief workers, even a cursory reading demonstrates that the “five consecutive 24–hour period” requirement applies to full-time employees. The Memorandum begins by addressing the DOL’s policy of “allow[ing] ‘relief’ employees who are provided with private quarters in a home-like environment to be treated the same as ‘fulltime’ employees (i.e. those who either reside on the employer’s premises permanently or for ‘extended periods of time’).” Id. But, the DOL explains, “[a]n essential requirement for this special [relief] position is that a group home have one or more full-time employees who either reside on the premises permanently or ‘for extended periods of time.’ ” So the Memorandum turns to that prerequisite and focuses on when full-time employees are considered to reside “for extended periods.” Id. Indeed, the next sentence cites the 1981 Opinion Letter Defendants rely on, and explains that “it has become clear that further guidance is necessary for employers and employees in the industry.” Id.

If doubt somehow remains about whether the 1988 Memorandum is clarifying the 1981 Opinion Letter on when full-time employees reside for an extended period, the DOL reiterates that “these employees are called ‘full-time’ employees” after citing examples of how the “five consecutive 24–hour period” standard works. Id .; see also id. (further explaining that the Memorandum is talking about requirements for “deduct[ing] sleep time for full-time and relief employees”). And numerous courts have applied the 1988 Memorandum to full-time employees. See, e.g., Nelson, 896 F.Supp. at 1112–13 (relying on the 1988 guidance in deciding whether “non-relief employees” resided on the employer’s premises for an extended period); Lott, 746 F.Supp. at 1085, 1089 (citing the 1988 Memorandum “as defining under what circumstances an employee must be compensated for sleep time” in case involving plaintiffs who worked full time at public group home); Shannon v. Pleasant Valley Cmty. Living Arrangements, Inc., 82 F.Supp.2d 426, 432–33 (W.D.Pa.2000) (examining the 1988 Memorandum in determining whether the parties’ agreement concerning sleep-time compensation was reasonable). Indeed, the 1988 Memorandum’s clarification of the “extended period of time” requirement so plainly refers to full-time employees that the Court has given this defense argument more attention than it deserves.

As such, the court granted plaintiff’s motion and held that FLSA requires compensation for Boman’s time spent at the facility from 11:00 p.m. to 7:00 a.m.

Click Boman v. All The Little Things Count, L.L.C. to read the entire Memorandum and Order.

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8th Cir.: Where Employer’s Change to Workweek Was Permanent, “Legitimate Business Purpose” Not Required

Abshire v. Redland Energy Services, LLC

Following an order granting the defendant-employer summary judgment, the plaintiff appealed. At issue was whether the employer’s permanent change to its workweek- for the stated purpose of reducing overtime hours worked by its employees- violated the FLSA. The lower court held that the purpose behind the employer’s change to its workweek was irrelevant, so long as the change was intended to be permanent. Affirming the award of summary judgment, the Eighth Circuit agreed.

The facts were relatively straight-forward and not in dispute. The defendant-employer changed the designation of its workweek from Tuesday-to-Monday to Sunday-to-Saturday for employees who worked 12 hour shifts for seven consecutive days from Tuesday to Monday, followed by seven days off. The change was intended to and did result in fewer hours calculated as overtime.

Initially, the court explained that an employer may pick any contiguous 168 hours as its workweek. The court then explained:

Having concluded that the FLSA does not prescribe how an employer must initially establish its “workweek” for overtime purposes, we come to the issue raised in this case—whether the FLSA limits an employer’s freedom to change an existing workweek designation. Again, § 778.105 of the Department of Labor’s regulations directly addresses the issue: “The beginning of the workweek may be changed if the change is intended to be permanent and is not designed to evade the overtime requirements of the Act.” This sentence makes one limitation clear—a change must be “intended to be permanent.” But that is not at issue here. Appellants have never challenged Redland’s contention that the May 2009 change in the oil rig operators’ workweek was intended to be permanent. Rather, Appellants argue that Redland’s change violated § 207(a)(1) because it was made for the purpose of reducing the number of hours in their normal work schedules that must be paid at the overtime rate, and therefore it was “designed to evade the overtime requirements of the Act.”

The caution that a workweek change may not be designed to evade the requirements of § 207(a)(1) has been part of the Department of Labor’s interpretive pronouncements since the FLSA was first enacted. See Department of Labor, Interpretative Bulletin No. 4, ¶ 3 (Nov. 1, 1938), cited in Harned, 192 S.W.2d at 380. It was an understandable caution in advising how this initially controversial Act would be construed and applied. Many early FLSA cases dealt with payroll plans devised to evade the Act’s new payroll expense obligations. For example, in an early case applying § 207(a), the Supreme Court invalidated a “split-day” compensation plan “so designed as to deprive the employees of their statutory right to receive [overtime pay] for all hours worked in excess of the first regular 40 hours.” Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 40, 65 S.Ct. 11, 89 L.Ed. 29 (1944). That decision is now codified in the regulations. See 29 C.F.R. § 778.501(a). But the Department has never interpreted its general caution that changes to the workweek may not be “designed to evade the overtime requirements,” nor has it attempted to clarify what constitutes “evasion.”

Citing an Illinois Minimum Wage Law case as authority, the court rejected the plaintiff’s assertion that an employer may not make a change to its workweek absent a “legitimate business purpose” (i.e. just to reduce overtime hours/pay):

The precise issue before us was presented, and Appellants’ contention persuasively rejected, in a case applying overtime requirements of the Illinois Minimum Wage Law for which administrative regulations including 29 C.F.R. § 778.105 had been adopted. Kerbes v. Raceway Assocs., LLC, –––Ill.App.3d ––––, 356 Ill.Dec. 476, 961 N.E.2d 865, 870 (2011). In Kerbes, the racetrack employer changed its designated workweek so as to split racing event weekends into two different workweeks, eliminating overtime pay for its part-time hourly employees. Concluding that an employer’s right to establish a workweek was “well-settled” by the above-cited cases, the court further concluded the racetrack’s modification of its workweek did not violate the overtime requirements of the FLSA…. [T]he FLSA does not require a workweek schedule that maximizes an employee’s accumulation of overtime pay. Thus, a schedule whereby an employee’s actual work schedule is split between two workweeks does not violate the federal legislation. If such a schedule does not itself violate the FLSA, we fail to see how a change to such a schedule could be viewed as having been “designed to evade the overtime requirements of this Act.” Id., 356 Ill.Dec. 476, 961 N.E.2d at 872. We agree with this reasoning.

Appellants argue that a workweek change intended to reduce hours of overtime earned is contrary to the purposes of the FLSA’s overtime requirements and is therefore “designed to evade” those requirements. We disagree. Appellants’ assumption that an original purpose of the FLSA was to maximize the payment of overtime rates is contrary to more contemporary authority. See Missel, 316 U.S. at 578, 62 S.Ct. 1216 (“In a period of widespread unemployment and small profits, the economy inherent in avoiding extra pay was expected to have an appreciable effect in the distribution of available work.”). Thus, an employer’s effort to reduce its payroll expense is not contrary to the FLSA’s purpose. Moreover, Christensen v. Harris Cnty., 529 U.S. 576, 585, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000), clearly teaches that courts may not imply a prohibition that cannot be found in the Act. Cases involving other FLSA requirements illustrate this principle. For example, in Lamon v. City of Shawnee, 972 F.2d 1145, 1153 (10th Cir.1992), the court concluded that a public employer’s new workweek adopted to take advantage of an FLSA amendment did not violate the Act “[e]ven if [the employer's] sole purpose were to avoid the prospect of paying overtime rates.” And in Morehead v. City of Pearl, 763 F.Supp. 175, 176 (S.D.Miss.1990), the court noted that a scheduling change intended to reduce overtime hours was not “an evasion” of the overtime requirements; it was “straight-up avoidance” of overtime that the FLSA does not require be paid.

We reject Appellants’ contention that an employer’s permanent change in the designated workweek violates § 207(a)(1) unless it is justified by a “legitimate business purpose.” So long as the change is intended to be permanent, and it is implemented in accordance with the FLSA, the employer’s reasons for adopting the change are irrelevant. Accordingly, whether Redland in fact adopted the change in question to achieve administrative efficiencies in calculating and paying wages and overtime, and if so, whether that was a “legitimate business purpose” justifying the change, were not genuine disputes of material fact that precluded the grant of summary judgment in favor of Redland. Fed.R.Civ.P. 56(a).

Thus, the Eighth Circuit affirmed the judgment for the defendant.

Given the clear language of the CFR regulation that an employer’s change to a workweek must not be “designed to evade the overtime requirements of the [FLSA],” and the defendant’s acknowledgement here that its change was explicitly made to reduce overtime pay to its employees, while having them work the same number of hours, the Eighth Circuit’s holding is somewhat curious. At least for now however, the Eighth Circuit is the only Circuit to have pondered the issue.

Click Abshire v. Redland Energy Services, LLC to read the entire Opinion.

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S.D.N.Y.: De Minimis Exception Applies Only in Cases Where There is a “Practical Administrative Difficulty in Recording Time”

Chavez v. Panda Jive, Inc.

Anyone who handles more than a handful of FLSA cases no doubt knows that defendants often raise an affirmative defense regarding the de minimis nature of the work. Typically the defense asserted claims that even if the defendants failed to properly pay the plaintiff for all time due and owing under the FLSA, such time was de minimis, so no damages are due and owing. And, while most of the decisions discussing the issue focus on the amount of time that is (or is not) de minimis as a matter of law, a recent case sheds light on the narrow circumstances where the defense is even available to an employer. And, as it turns out, the defense is likely applicable far less than you might have thought, only in circumstances where there is a “practical administrative difficulty in recording [the employee's] time,” as discussed briefly in this case.

In this case, the plaintiff’s time records clearly showed overtime hours worked, however the defendant paid him only straight time for his overtime hours, and not time and a half. As the court’s opinion indicates, initially the defendant had raised an exemption defense, however because the plaintiff was admittedly paid by the hour, the defendant ultimately conceded that the plaintiff was generally entitled to overtime (which he was not paid) when he worked over 40 hours in a work week. However, the defendant asserted that because such time was “de minimis” it was not recoverable under the FLSA. Rejecting defendant’s contention, the court explained:

The de minimis exception applies, however, only in cases where there is a “practical administrative difficulty of recording additional time,” such as an employee’s commuting time. Singh v. City of New York, 524 F.3d 361, 371 (2d Cir.2008) (Sotomayor, J.); Reich v. N.Y. Transit Auth., 45 F.3d 646, 652 (2d Cir.1995). This is not such a case: defendants concede that they paid Chavez only straight time for hours for which their own records explicitly show he was owed time and a half. See, e.g., Reply Memorandum of Law in Support of Defendants’ Motion for Summary Judgment dated May 4, 2012 at 4–5; Tr. at 5–6. Accordingly, the Court grants summary judgment to plaintiff on the issue of liability against defendant Panda Jive for overtime hours Chavez worked prior to moving back to Penelope’s kitchen in December 2009.

Click Chavez v. Panda Jive, Inc. to read the entire Memorandum Order.

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5th Cir.: Where Employees Were Represented in Grievance Process By Their Union and Its Attorneys, Private Settlement of a Bona Fide Dispute Enforceable

Martin v. Spring Break ’83 Productions, L.L.C.

Following the entry of summary judgment on behalf of the defendants, the plaintiffs appealed. As discussed here, plaintiffs challenged the trial court’s holding that the private settlement reached between their union and one of their alleged employers was binding and enforceable. Specifically, the plaintiffs argued that absent: (1) court approval, (2) DOL supervision, or (3) a showing that they had been paid their wages in full without compromise, the settlement previously reached was not binding and/or enforceable. Affirming the decision below, the Fifth Circuit held that the settlement agreement was binding and enforceable notwithstanding the lack of court or DOL supervision, because it was a resolution of a bona fide dispute. While it is not entirely clear, it appears that the Fifth Circuit reasoned that the agreement, at least arguably could be said to be “without compromise,” thus making it binding and enforceable.

The case concerned grips and other movie production employees who worked on the set of a movie. Laying out the relevant procedural/factual background, the Fifth Circuit explained:

The plaintiffs “filed a grievance against Spring Break Louisiana alleging that they had not been paid wages for work they performed. The Union sent a representative to investigate the merits of the claims. After his investigation, the representative concluded that it would be impossible to determine whether or not Appellants worked on the days they alleged they had worked. The Union and Spring Break Louisiana entered into a Settlement Agreement pertaining to the disputed hours allegedly worked by Appellants.”

Discussing the issue of whether the private settlement here was binding and enforceable the Fifth Circuit reasoned:

The district court concluded that the plain language of the Settlement Agreement “is binding upon the [Appellants] in their individual capacities and prohibits those individuals from pursuing future legal action against Spring Break Louisiana after receiving their settlement payments.” We agree. The Settlement Agreement, in relevant part, states:

The Union on its own behalf and on behalf of the IATSE Employees agrees and acknowledges that the Union has not and will not file any complaints, charges or other proceedings against Producer, its successors, licenses and/or assignees, with any agency, court, administrative body, or in any forum, on condition that payment in full is made pursuant to the terms of this Settlement Agreement.

The Settlement Agreement also states that the Union “has the full power and authority to enter into this Settlement Agreement on behalf of IATSE Employees and bind them in accordance with the terms hereof.” By this plain language, the Appellants, who were IATSE Employees, were bound by its terms. Appellants contend, however, that the Settlement Agreement is unenforceable because they never signed it or agreed to it—instead, the Settlement Agreement was signed by Union representatives. However, Appellants do not dispute that they received full payment for their claims pursuant the terms of the Settlement Agreement. Nor do Appellants dispute that they cashed the Settlement Agreement payment checks they received. The Appellants were members of the Union and, under the CBA, Spring Break Louisiana recognized “the Union as exclusive representative of the employees in the bargaining unit.” Considering that Appellants, who were members of the Union, received and accepted full payment for their FLSA claims under the Settlement Agreement, the fact that Appellants did not themselves personally sign the Settlement Agreement does not render it unenforceable. See N.L.R.B. v. Allis–Chalmers Mfg. Co., 388 U.S. 175, 180, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967) (“The employee may disagree with many of the union decisions but is bound by them.”).

On appeal, the plaintiffs argued that the settlement agreement was not binding and enforceable, because generally individuals may not privately settle FLSA claims. In response the defendants argued that that a private compromise of claims under the FLSA is permissible where there exists a bona fide dispute as to liability (and as to the amount of appropriate damages). After a discussion of the relevant Fifth Circuit precedent, the court agreed with the Defendants and held the settlement agreement at issue to be enforceable.

Significantly the court reasoned:

[H]ere, there is a bona fide dispute between Appellants and Spring Break Louisiana over the number of hours for which they are owed their set rate of pay. In fact, the Union representative conducted an investigation into the dispute and received conflicting information from various sources, ultimately concluding that it would be impossible to determine whether or not Appellants worked on the days they claimed they had worked in their grievance.  Approving of this rationale, we hold that the payment offered to and accepted by Appellants, pursuant to the Settlement Agreement, is an enforceable resolution of those FLSA claims predicated on a bona fide dispute about time worked and not as a compromise of guaranteed FLSA substantive rights themselves. See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 714, 65 S.Ct. 895, 89 L.Ed. 1296 (1945) (“Our decision … has not necessitated a determination of what limitation, if any, Section 16(b) of the [FLSA] places on the validity of agreements between an employer and employee to settle claims arising under the Act if the settlement is made as the result of a bona fide dispute between the two parties, in consideration of a bona fide compromise and settlement.”); see also D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 114–15, 66 S.Ct. 925, 90 L.Ed. 1114 (1946) (“Nor do we need to consider here the possibility of compromises in other situation which may arise, such as a dispute over the number of hours worked or the regular rate of employment.”); 29 U.S.C. § 253(a).

Apparently the court also believed that the settlement at issue here could arguably be said to be “without compromise” such that the third permissible basis for an enforceable private settlement was met:

Notably, in Thomas v. Louisiana, 534 F.2d 613 (5th Cir.1976), we held that a private settlement of FLSA claims was binding and enforceable where the settlement gave employees “everything to which they are entitled under the FLSA at the time the agreement is reached.” Id. at 615. We explained that, “[a]lthough no court ever approved this settlement agreement, the same reason for enforcing a court-approved agreement i.e., little danger of employees being disadvantaged by unequal bargaining power[,] applies here.” Id.  Here, Spring Break Louisiana and the Union agreed in the Settlement Agreement that the payments Appellants were paid pursuant to that agreement were the “amounts due and owing” for the disputed number of hours they claimed they had worked and not been paid for. The Settlement Agreement was a way to resolve a bona fide dispute as to the number of hours worked—not the rate at which Appellants would be paid for those hours—and though Appellants contend they are yet not satisfied, they received agreed-upon compensation for the disputed number of hours worked.

Lastly, the court distinguished a settlement privately negotiated by a union and its attorneys from a situation where a labor union purports to waive an employees’ rights under the FLSA through a collective bargaining agreement, a longstanding no-no under well-established FLSA jurisprudence:

Finally, Appellants contend, citing Barrentine v. Arkansas–Best Freight Sys., 450 U.S. 728, 745, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981), that because the Supreme Court has held that a union cannot waive employees’ rights under the FLSA through a collective bargaining agreement, they cannot have settled their FLSA claims in the Settlement Agreement, which was arrived at through the Union-facilitated grievance procedure laid out in the CBA. See Barrentine, 450 U.S. at 745, 101 S.Ct. 1437 (“FLSA rights … are independent of the collective-bargaining process. They devolve on petitioners as individual workers, not as members of a collective organization. They are not waivable.”). Although the terms and conditions of Appellants’ employment with Spring Break Louisiana were covered by a collective bargaining agreement, Barrentine is distinguishable. In Barrentine, the plaintiffs’ grievances based on rights under the FLSA were submitted by the union to a joint grievance committee that rejected them without explanation, a final and binding decision pursuant to the collective bargaining agreement. 450 U.S. at 731, 101 S.Ct. 1437. Here, Appellants accepted and cashed settlement payments—Appellants’ FLSA rights were adhered to and addressed through the Settlement Agreement, not waived or bargained away. The concerns the Court in Barrentine expressed, that FLSA substantive rights would be bargained away, see id. at 740, 101 S.Ct. 1437 (“This Court’s decisions interpreting the FLSA have frequently emphasized the nonwaivable nature of an individual employee’s right to a minimum wage and to overtime pay under the Act. Thus, we have held that FLSA rights cannot be abridged by contract or otherwise waived because this would ‘nullify the purposes’ of the statute and thwart the legislative policies it was designed to effectuate.”), are not implicated by the situation here where Appellants’ Union did not waive FLSA claims, but instead Appellants, with counsel, personally received and accepted compensation for the disputed hours. We reiterate that FLSA substantive rights may not be waived in the collective bargaining process, however, here, FLSA rights were not waived, but instead, validated through a settlement of a bona fide dispute, which Appellants accepted and were compensated for. Therefore, the district court did not err by finding an enforceable release resolving this wage dispute.

Given, the somewhat unique facts of this case, it remains to be seen whether the Fifth Circuit’s decision while trigger a change in longstanding FLSA jurisprudence regarding the enforceability of privately-negotiated settlements, or whether this case will remain an outlier, largely limited to its facts. For example, it is not clear whether the settlement would have been enforced absent the fact that plaintiffs were represented by both their union and attorneys in the negotiations, or if this was a “straight time” case where there was demonstrative evidence of the precise number of hours at issue.  Stay tuned, for what’s likely to be an influx of cases where defendant-employers seek to expand this case’s holding while plaintiff-employees seek to limit the holding to the facts at bar (which are not likely to be oft-repeated).

Click Martin v. Spring Break ’83 Productions, L.L.C. to read the entire Decision. For an excellent historical overview of more typical decisions regarding the enforceability of private settlements of FLSA claims click here to read an outline from the folks at Outten & Golden.

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E.D.Wisc.: Plaintiff Who Helped Set Up Defendants’ Business Was an Employee Subject to FLSA Coverage, Not a Volunteer

Okoro v. Pyramid 4 Aegis

This case was before the Court on the plaintiff’s motion for summary judgment on a variety of issues. As discussed here, the plaintiff sought a finding that she was entitled to minimum wages under the FLSA as an employee, while the defendants contested that, arguing that any duties she had performed for them were volunteered. The case apparently followed the break-up of the plaintiff from the individual defendant in their romantic relationship. It was undisputed that the plaintiff performed many duties for the defendants- operators of a group home- over the approximate 2 years in question, including obtaining workers compensation insurance, attendance at residential training classes, cleaning and purchasing items for the facility, putting in business processes for the business (i.e. payroll services), marketing, hiring employees on behalf of defendants and other duties necessary for the defendants’ business to operate. While most of these facts were uncontested, the defendants maintained that this work was all volunteered, despite the fact, while the plaintiff asserted she expected to be paid as an employee.

After discussing various tests for employment under the FLSA (i.e. independent contractor vs employee), the court noted that there was no specific test for determining whether someone who performs duties for another is an employee or a volunteer under the FLSA. Thus, the court explained it was constrained only by a flexible “reasonableness” standard that takes into account the totality of the circumstances. The court explained:

In determining whether someone is an employer or a volunteer, this court has not stumbled upon any factored test similar to that of the 6–factor economic realities test used to differentiate independent contractors and employees. Rather, the court finds that the test for employment is governed by a reasonableness standard that takes into account the totality of the circumstances. The court is to review ” ‘the objective facts surrounding the services performed to determine whether the totality of the circumstances’ establish volunteer status, … or whether, instead, the facts and circumstances, objectively viewed, are rationally indicative of employee status.” Purdham, 637 F.3d at 428 (quoting Cleveland v. City of Elmendorf, 388 F.3d 522, 528 (5th Cir.2004)). In addition to the “economic reality” of the situation, other factors to consider include whether there was an expectation or contemplation of compensation, whether the employer received an immediate advantage from any work done by the individual, the relationship of the parties, and the goals of the FLSA. See Alamo Found., 471 U.S. at 300–01;
Rutherford Ford Corp. v. McComb, 331 U.S. 722, 730 (1947) (stating that the employer-employee relationship “does not depend on such isolated factors but rather upon the circumstances of the whole activity”); Lauritzen, 835 F.2d at 1534–35). It is the examination of objective indicia and the application of common sense with which this court arrives at its determination of whether the plaintiff here is an employee for purposes of the FLSA.

Applying this test to the facts at bar, the court held that the plaintiff was an employee rather than a volunteer:

According to Okoro, she never agreed to volunteer for Aegis; at all times, she expected to be compensated for her work. Specifically, Okoro expected to be paid $2,000 per month for her work, and in agreeing to defer her compensation until the facility garnered clients, she still worked with the expectation that she would be paid. (Okoro Aff. ¶¶ 4, 7–9.) Battles, while arguing that Okoro was a volunteer, also states that he intended to pay Okoro for her work if she qualified as an administrator and if the business had enough money in the future. (Battles Aff. ¶¶ 6, 25 .) The court notes Battles’s expectation not for the purpose of weighing the parties’ competing assertions (for this would surely contradict the FLSA’s remedial purpose) but to merely highlight that he too contemplated a compensation mechanism for Okoro’s work.

Expectations aside, it is not entirely correct for the plaintiff to assert that the defendants have failed to identify any personal benefit that Okoro purportedly received from her work for Aegis. In his affidavit, Battles avers that when Okoro sold him worker’s compensation insurance for Aegis, she told him “that she wanted to learn the group home business and therefore, she would learn the business by working at Pyramid 4 Aegis for no compensation.” (Battles Aff. ¶ 5.)

This court is not unmindful of any claim that Okoro may have wanted to learn and indeed did learn about the CBRF business. That may certainly have been part of her motivation in providing Battles some assistance in his effort to build the business. However, Battles does not deny that the work Okoro performed on behalf of Aegis conferred an immediate benefit to the company. Thus, the facts in this case stand in stark contrast to those in Walling. In Walling, the lower court’s finding that “the railroads receive[d] no ‘immediate advantage’ from any work done by the trainees” was unchallenged. 330 U.S. 148, 153. Indeed, “the applicant’s work [did] not expedite the company business, but … sometimes [did] actually impede and retard it.”   Id. at 150. In other words, the railroad was not receiving any immediate benefit from the training that was being given to the prospective brakemen.

Not so in the case at bar. The evidence here does not demonstrate that the work performed by Okoro on behalf of Aegis interfered in any way with the business of Aegis. To the contrary, the nature of the work that she performed, such as cleaning, picking up prescriptions, appearing in court on behalf of clients at the facility, and calling in hours for caregivers to Paychex, was undeniably of substantial assistance to Aegis. Even more to the point, such work was not akin to the “course of practical training,” which the prospective yard brakemen in Walling received. Id. at 150. One hardly needs to be trained in how to clean a facility, how to pick up prescriptions, and how to call in hours for caregivers.

Additionally, the economic reality of the situation was that Okoro worked for Aegis for a substantial length of time. The length of the “training course” that the prospective brakemen received in Walling was seven or eight days. Id. at 149. By contrast, Okoro worked for Aegis over the course of almost one year.

To be sure, Okoro and Battles had a “personal relationship” over the course of the relevant time period. (Okoro Aff. ¶ 6.) While it may be that at least some of the time Okoro spent at Aegis was to socialize with Battles, that particular matter may speak to the amount of damages to which she is entitled; after all, socialization may not be the equivalent of work. For purposes of Okoro’s motion, it is sufficient to find that, despite her relationship with Battles, she still performed substantial work for Aegis, Aegis reaped a direct and immediate benefit from her work, and she had a reasonable expectation that she would be compensated for her work. In sum, taking into account the totality of the circumstances in this case leads me to conclude that Okoro performed work for Aegis as an employee and not as a volunteer.

The court also noted the duty to interpret the FLSA broadly in favor of coverage, given the FLSA’s remedial purpose:

Finally, it must not be forgotten that, by design, the FLSA’s purpose is “remedial and humanitarian.” Tenn. Coal, Iron & R.R. Co. v. Muscodoa Local No. 123, 321 U.S. 590, 597 (1944), superseded by statute, Portal–to–Portal Act of 1947, Pub.L. No. 80–49, 61 Stat. 86 (1947) (codified as amended at 29 U.S.C. § 254). To effectuate this purpose, the FLSA requires courts to interpret its application broadly. See id. With this in mind, allowing Aegis the benefit of Okoro’s free labor when there existed an expectation of compensation would not comport with the FLSA’s purpose.

Thus, to the extent that the plaintiff’s motion seeks a determination that she worked for Aegis and is therefore entitled to compensation for such work under the FLSA, her motion will be granted. Precisely how much work she performed for Aegis, and for how many hours she should be compensated by Aegis, are matters for trial. It is enough to say that the work she performed for Aegis, at least for purposes of the FLSA, was not as a volunteer, but rather as an employee.

Click Okoro v. Pyramid 4 Aegis to read the entire Decision and Order on Plaintiff’s Motion for Summary Judgment.

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C.D.Cal.: Where Defendant’s Rounding Policy Was Facially Neutral No FLSA Violation

Alonzo v. Maximus, Inc.

In this case, brought under the FLSA and California State laws, plaintiffs alleged a variety of wage and hour violations, including failure to include all appropriate compensation when calculating regular rates (and resulting overtime premiums), unpaid off-the-clock work and impermissible rounding of work-time.  Following discovery, the case was before the court on defendant’s motion for summary judgment.  As discussed here, the court granted defendant’s motion with regard to plaintiffs’ rounding claim, because the evidence demonstrated that the rounding was facially neutral and did not have the overall effect of reducing plaintiffs’ reported time and resulting wages.

Significant to the rounding claim, it was undisputed that defendant’s timekeeping policy required plaintiffs to round their time worked to the nearest quarter of an hour (whether higher or lower) and that plaintiffs self-reported and thus self-rounded their reported time each day/week.

Discussing the rounding issue the court reasoned:

“Defendant moves for summary judgment on Plaintiffs’ Rounding Claim on the basis that Defendant’s time rounding policy is facially neutral, and, therefore, permissible under California law. For the reasons set forth below, Defendant’s Motion is GRANTED.

While no California statute or regulation expressly addresses the permissibility of using a rounding policy to calculate employee work time, the United States Department of Labor has adopted a regulation regarding rounding pursuant to the Fair Labor Standards Act (the “FLSA”) that permits employers to use time rounding policies under certain circumstances:

It has been found that in some industries, particularly where time clocks are used, there has been the practice for many years of recording the employees’ starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes this practice of computing working time will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.  29 C.F.R. § 785.48(b) (2011).

While few Courts have interpreted this regulation, those that have recognize that the regulation permits employers to use a rounding policy for recording and compensating employee time as long as the employer’s rounding policy does not “consistently result[ ] in a failure to pay employees for time worked.” See, e.g., Sloan v. Renzenberger, Inc., No. 10–2508–CM–JPO, 2011 WL 1457368, at *3 (D.Kan. Apr.15, 2011).

That is, an employer’s rounding practices comply with § 785.48(b) if the employer applies a consistent rounding policy that, on average, favors neither overpayment nor underpayment. East v. Bullock’s, Inc., 34 F.Supp.2d 1176, 1184 (D.Ariz.1998) (granting summary judgment in employer’s favor where “evidence show[ed] that [employer's] rounding system may not credit employees for all the time actually worked, but it also credits employees for time not actually worked” so that the employer’s “rounding practices average[d] out sufficiently to comply with § 785.48(b)”); see also Adair v. Wis. Bell, Inc., No. 08–C–280, 2008 WL 4224360, at *11 (E.D.Wis. Sept.11, 2008) (approving policy where there was no evidence to suggest it systematically favored employer); Contini v. United Trophy Mfg., No. 6:06–cv–432–Orl–18UAM, 2007 WL 1696030, at *3 (M.D.Fla. June 12, 2007) (granting employer’s motion for summary judgment where the “[employer], throughout [the employee's] employment, [used] a consistent policy as to the rounding of clocking-in and clocking-out, which [was] both fair and evenly applied to all employees.”).

An employer’s rounding practices violate § 785.48(b) if they systematically undercompensate employees. See, e.g., Russell v. Ill. Bell Tel. Co., 721 F.Supp.2d 804, 820 (N.D.Ill.2010) (time rounding and log-out policies may violate FLSA if they “cause[ ] plaintiffs to work unpaid overtime”); Austin v. Amazon .com, Inc., No. C09–1679JLR, 2010 WL 1875811, at *3 (W.D.Wash. May 10, 2010) (denying defendant’s motion to dismiss where policy “allows rounding when it benefits the employer without disciplining the employee; but disciplines the employee when the rounding does not work to the employer’s advantage”); Eyles v. Uline, Inc., No. 4:08–CV–577–A, 2009 WL 2868447, at *4 (N.D.Tex. Sept.4, 2009) (granting summary judgment for plaintiff where defendant’s rounding policy “encompasses only rounding down”); Chao v. Self Pride, Inc., No. Civ. RDB 03–3409, 2005 WL 1400740, at *6 (D.Md. June 14, 2005) (ruling that employer’s practice of rounding employee time down violated FLSA).

The parties concede that the federal standard governs this case, as California courts look to federal regulations under the FLSA for guidance in the absence of controlling or conflicting California law, Huntington Mem’l Hosp. v. Superior Court, 131 Cal.App.4th 893, 903, 32 Cal.Rptr.3d 373 (2005), and the California Division of Labor Standards Enforcement (the “DLSE”) has adopted the Department of Labor regulation in its Enforcement Policies and Interpretation Manual (“DLSE Manual”), DLSE Manual §§ 47.1–47.2.

It is undisputed that Defendant employed a facially neutral time rounding policy. Defendant’s Corporate Employee Manual required employees to self-report their time “on a daily basis by recording hours worked to the nearest quarter hour” on timesheets provided at the beginning of the pay period. (Doc. 127–13, Ex. R at 110; id., Ex. S at 127.) And Defendant’s human resources managers testified that Employment Case Managers in each of Defendant’s San Diego, Orange County, and Los Angeles locations adhered to this policy by rounding their hours worked to the nearest quarter hour and entering that figure on a daily basis into an electronic time sheet on Defendant’s computer system. (Doc. 127–17 ¶ 5 (San Diego); Doc. 130–15 ¶ 5 (Orange County); Doc. 130–14 ¶ 5 (Los Angeles).)

Plaintiffs do not dispute the mechanics of Defendant’s time reporting policy. In fact, their expert acknowledges that “class members were required to and did round [the total hours worked] to the nearest quarter hour” on their self-reported time sheets. (Doc. 126–5 ¶ 12.) Rather, Plaintiffs contend that “[o]ver a period of time, such rounding resulted in putative class members being paid for less than all the time they actually worked” in violation of § 785.48. (Doc. 126–5 ¶ 12.)

In support of their contention, Plaintiffs point to records generated at Defendant’s San Diego locations by an electronic system used to record when employees entered and exited Defendant’s offices (the “Simplex System”). The Simplex System was “essentially the electronic equivalent of a sign in/sign out sheet. An employee could punch in their number when they arrived at the workplace and then punch in the number when they left the workplace.” (Doc. 127–17 ¶ 6.; see also Doc. 136–2, Ex. A. 52:9–22.) Based on those entries, the Simplex System generated reports “in a variety of formats [showing] various clock-in and clock-out times for each employee for each date” (the “Simplex Records”). (Doc. 127–18 ¶ 16.) At least some employees also used the Simplex System to record the beginning and end of their lunch breaks. (Doc. 136–2, Ex. A. at 54:8–13.)

Plaintiffs used a sample of these Simplex Records to perform two statistical analyses. In the first, Plaintiffs compared the clock-in/clock-out times recorded by Simplex on a particular day with shift beginning and end times for that day. Plaintiffs conclude that their analysis shows that the number of minutes that would have been subtracted from employees’ time under Defendant’s rounding policy was 5.4% more than the number of minutes that would have been added to their time under Defendant’s rounding policy. (Doc. 129–4 ¶ 5; Doc. 127–18 ¶ 19.) In the second, Plaintiffs compared the total hours reflected on Simplex Records for a given employee on a particular day with the total amount paid to that employee reflected on his or her timesheets. Plaintiffs conclude that analysis reveals a net underpayment of 472.72 minutes for the sample group. (Doc. 129–4 ¶ 8.) Based on these statistical comparisons, Plaintiffs assert a triable issue of fact as to whether Defendant’s rounding policy is invalid under California law because it “result[ed], over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” 29 C.F.R. § 785.48(b). Plaintiffs are mistaken.

Even assuming the accuracy of Plaintiffs’ mathematical calculations, which Defendant disputes, Plaintiffs’ statistical analysis of Simplex Records does not create a genuine issue of material fact as to their Rounding Claim. At oral argument, Plaintiffs’ counsel conceded that the evidentiary record is devoid of evidence that Simplex Records reflect time actually worked by Plaintiffs, as opposed to time Plaintiffs may have been present on Defendant’s premises but not engaged in work activities. Rather, Plaintiffs’ counsel clarified that the Rounding Claim is based on Plaintiffs’ contention that all on-premises time reflected by Defendant’s Simplex Records constitutes time during which Plaintiffs were subject to Defendant’s control, and, therefore, compensable as a matter of law under the California Supreme Court’s decision in Morillion v. Royal Packing Co., 22 Cal.4th 575, 94 Cal.Rptr.2d 3, 995 P.2d 139 (2000). The Court disagrees with Plaintiffs’ reading of Morillion.

In Morillion, the California Supreme Court considered whether employees who were required by their employer to travel to a work site on the employer’s buses were “subject to the control of [the] employer” such that their travel time constituted compensable “hours worked” under Industrial Welfare Commission wage order No. 14–80. Id. at 578. The Court concluded that the employees were “subject to the control of [their] employer” during the time they traveled to the employer’s work site because the employer “require[d] plaintiffs to meet at the departure points at a certain time to ride its buses to work,” “prohibited them from using their own cars,” and “subject[ed] them to verbal warnings and lost wages if they [did not use the employer's transportation].” Id. at 587. Accordingly, the employees’ compulsory travel time constituted compensable “hours worked.” Id. at 594. In so ruling, however, the Court clarified that:

[E]mployers do not risk paying employees for their travel time merely by providing them with transportation. Time employees spend traveling on transportation that an employer provides but does not require its employees to use may not be compensable as ‘hours worked .’ Instead, by requiring employees to take certain transportation to a work site, employers thereby subject those employees to its control by determining when, where, and how they are to travel.  Id. at 588 (emphasis added). “The level of the employer’s control over its employees, rather than the mere fact that the employer requires the employee’s activity, is determinative.” Id . at 587.

This case does not present a situation in which Plaintiffs were “subject to the control of [Defendant]” such that all time spent on Defendant’s premises is compensable under the reasoning and holding of Morillion. Here, unlike in Morillion, Plaintiffs have presented no evidence that Defendant required them to arrive at its offices before their shifts began or to remain on the premises after their shifts ended. Nor have they presented evidence that Plaintiffs were engaged in work during any of the on-premises time reflected on their Simplex Records that was not accounted for in their electronic time sheets. In the absence of such evidence, the Simplex Records are simply immaterial to whether Defendant’s rounding policy systematically undercompensated Plaintiffs, and, therefore do not create a genuine issue of material fact as to the legality of Defendant’s rounding policy.

Accordingly, Defendant’s Motion for Summary Judgment is GRANTED as to Plaintiffs’ Rounding Claim.”

Click Alonzo v. Maximus, Inc. to read the entire Order Granting in Part and Denying in Part Defendant’s Motion for Summary Judgment and Granting in Part and Denying in Part Plaintiffs’ Motion for Summary Judgment.

 

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W.D.Mo.: Plaintiffs Sufficiently Pled a “Rounding” Claim, Where Alleged Defendants’ Policy of Rounding Resulted in Improper Denial of Wages

McClean v. Health Systems, Inc.

The Plaintiffs, Certified Nursing Assistants (“CNAs”) for Defendant, claimed that they were required to work off the clock during automatically deducted meal breaks, during mandatory meetings and training sessions, and while performing mandatory data entry known as “dart charting.”  The result of these policies was to allegedly deny the Plaintiffs wages and overtime. After the Plaintiffs amended their Complaint the Defendants filed a motion to dismiss regarding several of Plaintiffs’ allegations.  As discussed here, the court denied Defendants’ motion as it pertained to Plaintiffs’ claims arising from Defendants’ policy of rounding their time to the nearest quarter of an hour, regardless of actual time worked.

Discussing the sufficiency of the rounding claim, the court explained:

“One of the Plaintiffs’ substantive allegations is that the Defendants have a practice of “reduc[ing] [their] employees’ work hours by rounding their hours to the nearest quarter hour of time to their detriment (i.e., the rounding did not average out to equally benefit Defendants and its employees over time) which results in Defendants not paying its employees for all time worked.” Doc. 51 at ¶ 112. Defendants cite federal regulations which expressly allow the practice of rounding to the nearest 15–minute increment. 29 C.F.R. § 785.48(b) (“For enforcement purposes this practice of [rounding to 5, 10 or 15–minute increments] will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.”).  The Defendants submit Harding v. Time Warner, Inc. in support of their position that the Plaintiffs have not sufficiently pled a claim of improper rounding. No. 09cv1212–WQH–WMC, 2010 WL 457690 (S .D.Cal. Jan. 26, 2010). In Harding, the court found that, despite describing the allegedly improper rounding procedures in detail, Harding had failed to provide “specific factual allegations” showing that employees had been underpaid. Id. at *5. The Plaintiffs provided the following statements regarding rounding in their Amended Complaint:

112. Defendants further reduce its [sic] employees’ work hours by rounding their hours to the nearest quarter hour of time to their detriment (i.e., the rounding did not average out to equally benefit Defendants and its [sic] employees over time) which results in Defendants not paying its [sic] employees for all time worked. This practice results in Plaintiffs and all other similarly situated employees being denied wages including overtime premiums and Defendants’ illegal rounding practices are not de minimus. [sic]

113. Even though Defendants had a computerized timekeeping system in place and could have easily recognized and paid Plaintiffs’ and other similarly situated employees’ actual hours worked, Defendants deliberately disregarded the system’s records and rounded Plaintiffs’ and other similarly situated employees work time down to the nearest quarter of an hour.”

114. Defendants willfully and illegally rounded Plaintiffs’ and other similarly situated employees’ work time down to the nearest quarter of a [sic] hour.

Doc. 51 at ¶¶ 112–14 (legal conclusions in bold). Iqbal requires “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. The Plaintiffs allege that the rounding did not average out properly. They further allege that the Defendants maintain a computerized system which keeps time, but still chose to use rounding. Assuming the truth of these allegations, the Court can plausibly infer that the Defendants chose to round time because it would be more favorable than paying for actual time worked on a minute by minute basis, thus violating the averaging rationale inherent to rounding. While the Plaintiffs could have chosen to state more, to require them to plead, for example, specific minutes on specific days for which they were denied wages would be fact pleading inconsistent with Iqbal. Hamilton v. Palm, 621 F.3d 816, 817 (8th Cir.2010) (noting that “Iqbal did not abrogate the notice pleading standard of Rule 8(a)(2)”). The Defendants’ Motion to dismiss the Plaintiffs’ rounding claim is DENIED.”

Click McClean v. Health Systems, Inc. to read the entire Order.

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D.Md.: Loading/Unloading of Materials Could Be Deemed “Integral and Indispensable” for Fire Protection Services; DMSJ Denied

Ross v. Wolf Fire Protection, Inc.

Plaintiffs, employees who installed fire protection services (sprinklers) on behalf of their employer, filed this lawsuit claiming that Defendant failed to pay them for all of their compensable work time.  Specifically, Plaintiffs asserted that Defendant improperly failed to start their work day each day when they were required to come to Defendant’s facility to pick up expensive tools necessary for their work and load Defendant’s trucks.  Similarly, Plaintiffs alleged that Defendant failed to properly pay them for time spent when they were required to return such tools (and work vehicles) to Defendant’s facility at the end of each work day.  The Defendant argued that such time was precluded by the Portal-to-Portal Act, and in any event was de minimus such that it was not compensable time.  The court held that the facts could support a finding that such time was “integral and indispensable” to their work, thus making it potentially compensable.  As such, it denied Defendant’s motion.

Rejecting Defendant’s contentions, the court reasoned:

“The Defendants argue that the Plaintiffs “have never been instructed or directed to come to the [warehouse] before the start of the workday or at the end of the workday to pick up or drop off tools,” so loading of equipment at the warehouse cannot be an integral and indispensable part of their jobs. Defs.’ Mot. 7. The Plaintiffs contend that loading the equipment was integral because the equipment was necessary to installing sprinkler systems, and the Defendants required that they pick up the equipment at the warehouse. Pl.’s Opp’n 2–4.

An activity is “integral and indispensable” to the employee’s principal activities if it is “(1) necessary to the principal work performed and (2) done for the benefit of the employer.” Perez, 601 F.Supp.2d at 676 (citing Alvarez v. IBP, Inc., 399 F.3d 894, 902–03 (9th Cir.2003)).

The parties do not dispute that the Plaintiffs’ principal work was sprinkler system installation. See Defs.’ Mot. 6; Pls.’ Opp’n 2. Phillips’s affidavit is that the equipment he loaded and unloaded included items “necessary” to installing the sprinkler systems, such as the sprinkler heads, and because this equipment was expensive, Fire Protection “did not want [it] delivered directly to the job site” and “required [employees] to pick the[ ] [equipment] up at the warehouse, sign for [it], and account for [it].” Phillips Aff. ¶ 9.

From the evidence in Phillips’s affidavit, a reasonable factfinder could conclude that Phillips needed the equipment loaded at the warehouse to complete his job (the first part of the “integral and indispensable” inquiry).  From his testimony that Fire Protection did not want expensive items delivered directly to the job sites, and required that the pipefitters pick up and sign for the equipment, a reasonable factfinder could conclude that the loading and unloading was “done for the benefit of the employer.”  It is genuinely disputed whether Fire Protection required the plaintiffs to load and unload equipment, and whether the loading and unloading was “integral” to their “principal activity” requiring compensation under the FLSA.”

Rejecting Defendant’s contention that Plaintiffs were not entitled to be paid for travel time, the court explained:

“The Defendants argue that the Plaintiffs’ “voluntary carpooling” while “transporting tools, equipment and supplies” is not compensable under the FLSA. Defs.’ Reply 4. The Plaintiffs contend that because their workday started with loading the trucks at the warehouse, they must be compensated for all subsequent travel time within the workday. Pls.’ Opp’n 3–5.

The Portal–to–Portal Act did not change the “continuous workday” rule that “any walking, riding, or traveling time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity … is covered by the FLSA.” Epps, 2011 WL 1566004, at *5 (internal quotation marks omitted). Applicable regulations provide that:

Time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday must be counted as hours worked. Where an employee is required to report to a meeting place … to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice.  29 C.F.R. § 785.38.

As discussed above, Phillips’s affidavit that Fire Protection required him to report to the warehouse to load and sign out expensive equipment Fire Protection did not want delivered directly to the job site creates a genuine dispute whether the loading and unloading was a principal activity. Viewing the evidence in the light most favorable to the Plaintiffs, it also creates a genuine dispute about whether travel from the warehouse to the job site and the return to the warehouse at the end of the day are “part of the day’s work” requiring compensation under the FLSA.  The Defendants’ motion for summary judgment on the Plaintiffs’ FLSA unpaid wages claim will be denied.”

The issues discussed in this case are far from unique in the work world.  However, many employers continue to violate the law, assuming that they need only pay employees for time spent at customer work sites, where the employer is profiting from the employees’ work.  This case serves as a reminder that this is a misconception of the law.

Click Ross v. Wolf Fire Protection, Inc. to read the entire Memorandum and Opinion.

 

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W.D.Pa.: Security Guards Not Entitled to Be Paid For Pre- and Postliminary Work or Time Spent Cleaning Uniforms, As Required By Employer; Complaint Dismissed

Schwartz v. Victory Sec. Agency, LP

This case was before the court on defendant’s motion to dismiss plaintiffs’ complaint for failure to state a claim. The plaintiffs, security guards employed by defendant, alleged that the defendant has failed to properly compensate them for pre- and post- shift work that defendant required them to perform as part of their jobs. In its decision, the court agreed, largely citing in apposite case law in support of its decision.

First, the court held that time spent performing pre- and post-liminary duties required by defendant, for which no compensation was received, was precluded by the portal-to-portal act. Accepting the facts underlying this claim, as required on the motion to dismiss the court explained:

“Throughout the relevant time period, Defendant ex-pected Plaintiffs “to be available to work before commencement of their shift, during their promised meal break and after completion of their assigned shift for work-related tasks.” Id. at ¶ 17. Plaintiffs per-formed pre-shift work including: receiving pass down instructions, checking equipment, reviewing post orders, collecting schedules, meeting with supervisors, guarding, monitoring, patrolling, inspecting, and surveying. Id. at ¶ 19. Plaintiffs regularly performed post-shift work that included: preparing logs and event reports, collecting schedules, meeting with supervisors and providing pass down instructions. Id. at ¶ 29. Such work was undertaken by Plaintiffs for approximately 15–30 minutes of pre-shift work each day and 15 minutes to two hours of post-shift work per week. Id. at ¶¶ 26, 36. Defendant knew that such work was regularly performed because “Defendant’s agents regularly encouraged, instructed, suffered and per-mitted” Plaintiffs to perform this work and observed them doing so. Id. at ¶¶ 22, 31. Plaintiffs did not receive full compensation for the pre-shift and post-shift work that they performed because Defendant’s timekeeping and pay practices improperly placed the burden on Plaintiffs. Id. at ¶ 23, 33. Defendants also failed to implement any rules, systems or procedures to prohibit Plaintiffs from performing such work or to ensure that they were properly paid for such work. Id. at ¶ 24, 34.”

Notwithstanding these detailed allegations, the court concluded “Plaintiffs do not detail how Defendant’s failed to compensate them for pre- and post-shift work” and dismissed the claim (without prejudice) on this basis.

Addressing plaintiffs’ second claim, regarding defendant’s failure to pay them for time (1 to 2 hours per week) they were required to spend cleaning their uniforms, in order to meet defendant’s dress code requirements, the court found this claim equally unavailing. After a brief discussion of recent case law regarding the definition of tasks that are integral to work (so as to make them compensible), the court summarily concluded that “[h]ere… while Plaintiffs may have been required to wear and therefore maintain their uniforms, such actions were not integral and indispensible to Plaintiffs’ principal activity, providing security.” In so doing, the court ignored the obvious parallels of the uniform maintenance to other cases where courts found that similar activities were integral (i.e. feeding, training and walking of K-9 dogs by police officers while “off-duty”).  Given the fact that the defendant required the plaintiffs to wear these uniforms, and that they maintain the uniforms in a presentable fashion it is unclear how the court reached its conclusion in this regard.

It will be interesting to see whether the plaintiffs will appeal this decision, which seems to be out of line with prevailing authority outside of the Third Circuit regarding these issues.

Click Schwartz v. Victory Sec. Agency, LP to read the entire Decision.

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2d. Cir.: Where Employee’s Falsification of Time Records Was Carried Out at Employer’s Behest, Employer Cannot Be Exonerated by Fact That Employee Entered Erroneous Hours on Timesheets

Kuebel v. Black & Decker Inc.

This case was before the Second Circuit on Plaintiff’s appeal of an order awarding Defendant summary judgment.  Plaintiff asserted two distinct claims below: (1) that work performed on his PDA and in Defendant’s computer system (at home) extended his continuous workday such that Defendant’s failure to pay him for all time up to including such work was a violation of the FLSA; and (2) that he was entitled to be paid for off-the-clock work that he did not report because his supervisors instructed him not to.  While the court affirmed summary judgment on the “continuous workday” claim, it reversed as to the off-the-clock claim, holding that “[a]t least where the employee’s falsifications were carried out at the instruction of the employer or the employer’s agents, the employer cannot be exonerated by the fact that the employee physically entered the erroneous hours into the timesheets.”

With respect to the off-the-clock claims, the relevant facts cited by the court were:

“[plaintiff] asserts that he falsified his timesheets because his supervisors instructed him not to record more than forty hours per week. He testified that at monthly meetings, “there was always a point that [Idigo] and Mr. Davolt and [another manager] would always indicate that we [Retail Specialists] were not to put more than forty hours on our time sheet,” and that Davolt “told all of the reps that they were only to record forty hours a week, … no matter what they worked during that particular week.” Kuebel further testified that during a personal discussion with Davolt on February 22, 2007, Davolt said to him, “you can’t work overtime, you’re only supposed to put forty hours on your timecard.”

Discussing the viability of the off-the-clock claims that Plaintiff asserts he was owed overtime wages for time he allegedly worked, but admittedly did not report, the court first discussed the general legal principles applicable to FLSA claims where the Plaintiff alleges Defendant failed in its recordkeeping obligations (to maintain accurate time records), under Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–87 (1946).  The court below had determined that Plaintiff was not entitled to Anderson’s lenient burden of proof where, as here, he acknowledged that he falsified his own records.  However, the Second Circuit disagreed, holding:

“At least where the employee’s falsifications were carried out at the instruction of the employer or the employer’s agents, the employer cannot be exonerated by the fact that the employee physically entered the erroneous hours into the timesheets. As the district court emphasized, Kuebel admits that it was he who falsified his timesheets, notwithstanding B & D’s official policy requiring accurate recordkeeping. But his testimony—which must be credited at the summary judgement stage—was that he did so because his managers instructed him not to record more than forty hours per week. He specifically testified that at company meetings and during discussions with one of his supervisors, it was conveyed to him that he was not to record overtime no matter how many hours he actually worked. In other words, Kuebel has testified that it was B & D, through its managers, that caused the inaccuracies in his timesheets. While ultimately a factfinder might or might not credit this testimony, that is a determination for trial, not summary judgment. In sum, we hold that because Kuebel has presented evidence indicating that his employer’s records are inaccurate—and that although it was he who purposefully rendered them inaccurate, he did so at his managers’ direction—the district court should have afforded Kuebel the benefit of Anderson’s “just and reasonable inference” standard. See Allen, 495 F.3d at 1317–18 (finding just and reasonable inference standard applicable at summary judgment where plaintiffs had not recorded overtime, but “testified that they were discouraged from accurately recording overtime work on their time sheets, and were encouraged to falsify their own records by submitting time sheets that reflected their scheduled, rather than actual, hours”).  A contrary conclusion would undermine the remedial goals of the FLSA, as it would permit an employer to obligate its employees to record their own time, have its managers unofficially pressure them not to record overtime, and then, when an employee sues for unpaid overtime, assert that his claim fails because his timesheets do not show any overtime.”

Given the procedural posture of the case, the court found that Plaintiff had presented an issue of fact for the jury to decide, thus rendering summary judgment inappropriate, reasoning:

“Ultimately, the dispute as to the precise amount of Kuebel’s uncompensated work is one of fact for trial. As stated above, a plaintiff establishes a violation of the FLSA by proving that he performed uncompensated work of which his employer was or should have been aware. The Anderson test simply addresses whether there is a reasonable basis for calculating damages, assuming that a violation has been shown. Brown, 534 F.3d at 596. It does not entitle an employer to summary judgment where the employee’s estimates of his uncompensated overtime are somewhat inconsistent.

The district court further held that, in any event, the following evidence was sufficient to “negate the inference that [Kuebel] had performed work off-the-clock”: (1) B & D’s written policies and training materials stating that time worked must be accurately recorded; (2) Kuebel’s own time records; and (3) Beacon reports for Kuebel showing low in-store hours. Kuebel II, 2010 U.S. Dist. LEXIS 46533, at *39–40. We disagree. B & D’s evidence raises factual and credibility questions for trial, but it does not afford a basis for summary judgment. First, while the existence of B & D’s official policies requiring accurate timekeeping may detract from Kuebel’s credibility, it does not entitle B & D to judgment as a matter of law in light of Kuebel’s testimony that he was instructed by his managers not to record all of his hours. Second, that Kuebel’s timesheets do not show any overtime does not resolve the central question necessitating a trial, which, as we have seen, is whether Kuebel worked overtime but did not record it at his managers’ behest. Finally, to the extent that Kuebel’s Beacon hours—or, for that matter, his manager’s testimony that the condition of his stores was often subpar—suggest that Kuebel typically worked less than forty hours a week, such evidence also raises a factual issue for trial.”

Similarly, the court held that Plaintiff had created an issue of fact despite Defendant’s contention that it lacked knowledge of any unrecorded off-the-clock hours allegedly worked by Plaintiff, stating:

“We conclude that Kuebel has raised a genuine issue of material fact as to whether B & D knew he was working off the clock. Kuebel testified that on several occasions, he specifically complained to his supervisor, Davolt, that he was working more than forty hours per week but recording only forty. The district court discounted Kuebel’s testimony, relying on the fact that he never lodged a formal complaint using B & D’s anonymous reporting hotline. Id. at *44–45. But while that fact might conceivably hurt Kuebel’s credibility at trial, it does not warrant summary judgment for B & D.”

While it remains to be seen whether Plaintiff will actually prevail on his claims, given the FLSA’s non-delegable duty on employers, there can be little question that the Second Circuit reached the correct conclusion in holding that an employer who requires an employee to falsify his or her time records may not then benefit from such falsification.  Stay tuned to see how this one turns out…

Click Kuebel v. Black & Decker Inc. to read the entire opinion.

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