In Maddy v General Electric Company, filed in federal court in the District of New Jersey, the plaintiffs brought a collective action pursuant to the Fair Labor Standards Act (“FLSA”) to recover allegedly unpaid overtime compensation from General Electric Company (“GE”). The theory was unpaid preliminary and postliminary work. The plaintiffs were service technicians for GE’s Appliances Division; they made service calls to customers’ homes to repair GE appliances. There were 900 service technicians.
Despite the rule that service technicians’ paid work did not begin until they arrived at their first customer call, there were certain tasks they had to be completed beforehand. The plaintiffs generally logged onto their computers and checked their list of calls for the day before they left their homes.
The service technicians asserted that it took 10-15 minutes to boot up and log into their computers, and another 15-30 minutes to check their call lists, read emails and call their first customers prior to heading out for the day. They repeated some of this work after hours in the afternoon/evening.
The Court certified the class, although GE claimed that there was no policy in place requiring service technicians to do any pre-shift work. To the Court, however, it was clear that some unpaid work-related activity had to occur before service technicians arrived at their first calls and that all service technicians were similarly situated in this regard. The Court observed that whether this activity actually satisfied the elements of a claim under the FLSA was a merits question and therefore it was not for consideration at the conditional certification stage. At this step, the plaintiffs only had to allege a policy and present facts showing that the alleged policy affected them and all other service technicians similarly. Significantly, the Court observed that policy need not be written.
I have blogged and lectured numerous times about the dangers of class actions involving preliminary/postliminary use of PDAs, electronic devices and checking emails. If there is any, underline, any, hint of employer compulsion, and/or the pre/post shift activity is integrally related to the main job, that time is likely to be deemed compensable. These actions often occur in technician or route driving classifications, employees who use employer-issued PDAs for their work.
The best defense—draft a policy addressing all aspects of this issue, especially when, and how much of the time, will be compensable. In other words—get out in front of this wave before it knocks you over!