I have blogged a lot and given numerous presentations on the dangers of off-the-clock work time FLSA lawsuits. They are proliferating at a geometric rate and there seems no abatement in sight. There also is no industry that is not subject to being targeted for a lawsuit alleging unpaid work time. Now, a group of parking production assistants who work for CBS filed a suit claiming they were not paid for hours worked, not paid overtime and had their time records maintained in a ”creative” manner to accomplish that objective. The case is entitled Hines et al. v. CBS Corp. and was filed in federal court in the Southern District of New York.
The employees claim they were not properly paid for overtime hours worked guarding vehicles and blocking traffic on sets. These employees secure sets, lots, streets and guard production vehicles while they are working on set. They work for shows that film in New York such as “Elementary,” “A Gifted Man,” “Nurse Jackie” and “Masters of Sex.” Their theory is that they worked at production sites for 50-100 hours per week, but this working time was not recorded anywhere and there was impropriety in the manner in which the records were kept .
The Complaint alleged that “during the execution of these documents, defendants require plaintiffs to leave the wage information blank on the wage verification forms and the defendants later fill in this information with the rates necessary to complete their scheme of depriving plaintiffs of their due overtime pay.” For example, the named plaintiff asserts that he was paid $150 for a twelve hour shift, worked between 60-100 hours per week but was not paid any overtime
The plaintiffs’ counsel stated that “this is just a pattern and practice of how the industry is run.” He charged that this practice “involves some manipulation of the payroll [that is found] when you look at the paychecks.”
It may well be an industry practice that these workers are expected to work many off the clock hours. It may also be true that, as a rule, people do not complain (at least until they no longer work there) because maybe they want to rise within the industry and do not want to risk being blacklisted because they complained.
That does not matter for FLSA purposes. The truth is it only “takes one.” If a single worker (current or former) files a lawsuit and dozens or hundreds of other employees were subject to the same policy or unwritten practice, then they will all be included in any putative class that may be certified. If this record keeping practice allegation proves to be true, that will almost by itself ensure that willfulness exists and a third year will be allowed by the court.
The lesson is that there are ways, legal ways, to control labor costs at the same time ensuring and maintaining compliance with the FLSA. The key is to find them.
Lights! Camera! Action!