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The financial giant Morgan Stanley announced that it will settle four FLSA collective actions for six million dollars; the suits, filed by financial adviser trainees, alleged that they were not paid overtime properly.  The case is entitled Devries v. Morgan Stanley & Co. LLC et al. and was filed in federal court in the Southern District of Florida.

Dollars
Copyright: kentoh / 123RF Stock Photo

The parties asked U.S. District Judge Kenneth A. Marra to grant preliminary approval of the settlement, which includes attorneys’ fees of almost four million dollars as well.  The filing papers asserted that “the proposed settlement satisfies the criteria for approval of a Fair Labor Standards Act collective action settlement because it was reached after significant information exchange and contested litigation in four venues, and was the result of arm’s length settlement negotiations conducted by experienced counsel well-versed in wage and hour law.”

The settlement provides that members of two of the four collective actions will receive the equivalent of six hours of unpaid overtime for each week they worked, while the others will receive payments equivalent to those reached in a very similar case involving this company, which ended in 2014 with a $4.2 million settlement.  The case involved allegedly unpaid training and study time, i.e. off-the-clock work.  These types of cases have reached epidemic proportion and are showing no signs of losing vitality.  The plaintiffs alleged that although the bank had a written policy to pay overtime, there existed, in reality, a de facto “off-the-clock” policy in violation of the FLSA.

The Company defended this case aggressively, as noted by the assertions in the filings that the “plaintiffs believe that this amount represents a very fair settlement given the amount of unpaid overtime that was claimed, the uncertainty of success on collective certification, and defendants’ defenses on the merits, including its contention that that it provided paid time during the workweek for studying during training weeks and that it took steps to prevent its employees from studying off the clock.”

The Takeaway

The Company put forth a statement that it agreed to settle these lawsuits in order to avoid the cost and distraction of prolonged litigation.  That was the correct thing to do but the more important thing is to now make sure that proactive steps are taken to ensure that if study/reading time is mandated (or implicitly mandated) that the employees are compensated for that time.

There is no industry or business that is immune to FLSA collective actions.  One might think that the a “high end” jewelry business would not be hit with such a suit, but a California federal judge has just certified a class of Zales employees who have alleged that their employer did not pay overtime properly; that FLSA class has been certified, nationwide.  The case is entitled Tapia v. Zale Delaware Inc. et al., and was filed in federal court in the Southern District of California.

Diamond ring
Copyright: bigheado / 123RF Stock Photo

The class includes 1,600 workers in a class limited to California workers.  The plaintiffs alleged that the Company rounded down time reflected on time cards.  The judge found it “easy” to certify the class as the Company’s uniform payroll policy showed that the workers were similarly situated.  The Court stated that “plaintiff established that defendant uses the same ‘point of sale’ computer system to record the time its hourly employees work at the stores.  Thus, plaintiff is able to determine from defendant’s time records — to the minute — the time every employee in the class clocked in and clocked out.”

The judge rejected Zales’ essentially legal argument that its “rounding” practice was legal.  The Court concluded that it was too early into the case to make that merits-based determination.  That was the (just) the California case.  The Court also granted conditional certification of a nationwide class of possibly 20,000 workers who worked at Zales since July 2010.  They alleged that the same rounding practices deprived them of overtime monies.  Again the Judge found commonality, stating that the “plaintiff has shown that there are other similarly situated employees because defendant uses the same payroll procedures at all of its stores.”

The named plaintiff, who was fired after less than one year, alleged that her time records were altered to show that she worked fewer hours than she actually did.  For example, if she worked nine hours and three minutes, the extra three minutes were automatically deducted.  She also claimed that a thirty minute lunch was deducted, whether she took her lunch or worked through it and she was not paid overtime.  The brevity of her employment may undermine her credibility.  The Company strongly denies the allegations and contends that the rounding system was in compliance with FLSA standards.

The Takeaway

This class was certified due to the overall, uniform practice of rounding employee time down (and, hopefully, up).  This is dangerous.  In many class actions, we defend by arguing that too much individualized scrutiny is called for and that is why the necessary commonality does not exist.  Here, where an overriding practice obtains, that argument goes away.  What the Employer is left with, it seems, is contending that the rounding practice comported with the FLSA.

All those eggs in a single basket?

I have a feeling it may hold them…

Usually, when a party does not respond to discovery requests, it can face sanctions, including the dismissal of the case (if he/they are the plaintiff(s).  Well, that truism took a hit the other day when a New Jersey federal judge did not dismiss the claims of two opt-in plaintiffs in a FLSA collective action against General Electric Company, as the Court concluded that the delays in their responding to discovery by service technicians, who have charged they were not compensated for off-the-clock duties, did not mandate dismissal of their case.  The case is entitled Maddy et al. v. General Electric Co., and was filed in federal court in the District of New Jersey.

Copyright: marsil / 123RF Stock Photo
Copyright: marsil / 123RF Stock Photo

Although the plaintiffs had a lengthy history of delinquent discovery responses, including a year-long lack of response to certain discovery requests, the Judge refused to throw their claims out.  The Judge examined the so-called Poulis factors, the Third Circuit six-part standard  to determine whether to dismiss a case for failure to comply with discovery and concluded that, in their totality, the standards weighed against dismissal. The Court found that “the only factors which somewhat weigh in favor of dismissal are the extent of the parties’ personal responsibility and the history of dilatoriness.”

The Judge found no evidence to support the employer’s claim that it had been prejudiced by the discovery delay nor was there any evidence that the two opt-ins had acted in bad faith when eventually responded to the May 2014 request in September 2015.  Significantly, the Judge also found that the plaintiffs’ claims seemed meritorious (which is one of the Poulis factors) as the defendant had not filed a motion challenging the legal sufficiency of the claims.

The allegations were that employees were doing preliminary, off-the-clock work.  The employees charge that spent time on integrally connected tasks, including time spent logging in to the computer system in order to download jobs, responding to emails and travel time.  Importantly, they allege that their supervisors intimidated them when they tried to report the time worked on their timesheets.

The Takeaway

This case evidences the “leniency” with which courts allow plaintiffs to continue to press their claims, even in the face of dilatory (beyond words) conduct in responding to discovery.  It seems if the defendant had made some motion to dismiss or challenge the claims, on their own merits, the result might have been different.

The bigger issue is whether, in reality, the employees were working off-the-clock or performing tasks so directly connected to their primary jobs that those sideline activities became compensable.  If supervisors intimidated employees not to report the time, that is bad enough on its own and worse, it will fortify the allegations of how many hours they claimed they worked.

The USDOL has announced a proposed rule for implementing the President’s Executive Order, which would require federal government contractors to offer employees up to seven days of paid sick leave.  This is a bold initiative that is paralleling this fairly common fringe benefit offered by many private employers, but which construction contractors were perhaps less ready to implement for their employees.

Sick person and paid sick leave
Copyright: racorn / 123RF Stock Photo

The proposed rule will be published in the Federal Register on March 3, 2016.  The agency believes that more than 437,000 employees of contractors do not receive this benefit and this proposal provides a way by which workers will not have to choose between their health and their paycheck, according to the Secretary of Labor.

At the time the Executive Order was signed, there was a fear that this would lead to a federal law regarding paid sick leave legislation.  The proposal would allow employees to utilize the paid sick leave not only for their own illnesses and conditions, but also to care for sick children, parents, spouses or partners.  Another usage would be for circumstances related to domestic violence, sexual assault or stalking.

The rule would apply to, among other things, Davis-Bacon Act projects and work under the Service Contract Act.  The rule would apply to new contracts (and extensions of expiring contracts) that result from solicitations issued on or after Jan. 1, 2017, or that are awarded outside the solicitation process as of Jan. 1, 2017.

There are specific requirements for how employers treat accrued but unused paid sick leave.

Contractors have to allow employees to carry over any unused leave into the next year.  It also requires contractors to reinstate employees’ accrued, unused paid sick leave upon rehiring by the same contractor or successor entity within 12 months after job separation.  However, contractors will not have to pay out unused paid sick leave to employees at separation.

The Takeaway

Many foreign countries, like Canada, have all kinds of fringe benefit items statutorily set and there is little, if any, room for dispute because the statute spells everything out.  So maybe a federal, uniform law/procedure for some fringe benefits might establish reasonable overall standards. Then, employers would not have to consider/agonize about whether or not go provide such benefits.

I believe there are very, very few employment-related lawsuits in Canada.  Maybe they’re on to something.

I have followed this case closely for some time,  I blogged in September that I thought the City of Chicago had positioned itself in the most favorable position, with the policies and procedures it had implemented, to win this very large class action.  It seems I was right.  The federal district court judge has ruled that police officers who sought overtime pay for their off-duty use of City-issued BlackBerrys failed to demonstrate that there was an unwritten policy to the effect that they would not be compensated for the work.  The case is entitled Allen v. Chicago and was filed in federal court in the Northern District of Illinois.

Copyright: paylessimages / 123RF Stock Photo
Copyright: paylessimages / 123RF Stock Photo

The Judge agreed that the officers had proven that they did, in fact, perform off-duty work on their BlackBerrys, but concluded that they failed to show that the City “suffered and permitted” the work to be done, knowing about it but then refusing to compensate the officers for that work. This was a protracted proceeding; the case was filed five years ago and the trial ended in late August.

The Court found that there was no evidence indicating that the officers’ supervisors knew that they were working on their BlackBerrys off-duty without submitting time slips to be paid for the work.  The plaintiffs also did not show that the superiors pressured line officers not to submit slips for this off-duty work.  The Court rejected plaintiffs’ contention that they were “terrified” of submitting requests to be paid as there was a “culture” within the department of not submitting such requests.

The City countered those arguments, by asserting that the officers could not show any official department policies of not paying requests for overtime.  In fact, and to the contrary, the City presented evidence of numerous instances of officers requesting and, significantly, receiving overtime pay for off-duty use of their BlackBerrys.

The Takeaway

The issue of preliminary and postliminary, off-the-clock work, allegedly which has not been paid, has been bursting upon the legal scene for a number of years.  In this vein, there has been a horde of these BlackBerry cases.  Most of the time, the employer defends by claiming it is de minimis, which it usually never is.  The other defense is that the work was not ordered or directed.  It is then that the “suffer and permit” doctrine kicks in and the defendant loses on that ground.

What the City of Chicago did in this case, however, is the best defense of all.  By issuing the Memoranda and by having in place a system for officers to report the time, the City essentially preempted the claims of the men by “imposing” upon them a burden to prove that nameless, “unwritten” policies, trumped the documented issuances of the Police Department.

Guess what?  Wage suits are increasing.  Hardly a surprise.  A recent study shows that wage-hour lawsuits were up about 8 percent over last year, which may stem (in part) from the recent USDOL initiatives on revising the FLSA exemption regulations and its “white paper” on independent contractor issues.  There is also the problem with applying a law born of the Great Depression to the modern workplace and all the new technology issues.

Increase in wage hour lawsuits
Copyright: tiero / 123RF Stock Photo

The study, with data derived from the Federal Judicial Center, shows that (as of the end of September), almost 9000 wage-hour suits had been filed, up from the 8000 filed the previous year.  The data included FLSA cases filed in federal courts and similar-type state-law suits removed to federal court.

There has been a lot of publicity about raising the minimum wage in many areas, such as the $15 per hour minimum wage in Seattle and the directive from Governor Andrew Cuomo to raise the minimum wage for fast-food workers to $15 per hour.  The President has called for the federal minimum wage to rise to $10.10.  It is also an issue in presidential politics.

The USDOL has also proposed changing the exemption rules, in favor of more employees getting overtime.  The agency has also issued a formal Interpretation in July 2015 that greatly limited the kinds and numbers of people that can be validly deemed “independent contractors.”  There is a march of technology and it is difficult to meld the law with the technology.  Commentators have noted that “trying to fit a law designed at a very different time to address different problems and a different type of economy and workplace is difficult, and raises issues.”

There has also been a geometric rise in “off the clock” working time cases.  The issues of preliminary and postliminary “work” generate many controversies.  The email/PDA cases persist and flourish; they are another example of the clash of law and technology.  It is really the general “theme” of what constitutes “work” in today’s world that skews the number of suits upwards.

The Takeaway

I have always preached that an employer cannot prevent lawsuits being filed against it.  If you fire someone, that disgruntled employee may seek out a lawyer or file a DOL complaint and then the litigation wheel starts spinning.  The best defense is to be proactive and undertake an objective examination (an internal audit) of all a company’s compensation practices, e.g. classification issues, working time policies, bonus, commission, vacation policies.

Fix what is broken and start eroding away, softly, the statutes of limitation.

I often blog about what is and is not working time under the FLSA.  Many class actions have been brought on these issues, with some focused on time waiting for security checks.  A class of retail workers working for Apple Inc. have sought a ruling that the time they spend having their bags checked at work was working time because they were under their employer’s control during these mandated security screenings.  The case is entitled Frlekin et al. v. Apple Inc., and was filed in federal court in the Northern District of California.

Apple employees and compensable time
Copyright: instinia / 123RF Stock Photo

The plaintiffs argued that the time was compensable because it was required and, most importantly, they could be disciplined if they did not comply with the screenings.  The defendants countered by asserting that the screenings were not “required” because the employees were not required to bring backpacks, purses and iPhones to work, which were the items being screened.  The plaintiffs countered that by asserting that this was not “an activity that’s done for the employees’ benefit.”  Their lawyer stated that “you can’t tell an employee how to spend their time and not compensate them for that time.”

The defendants argued that it was insufficient to claim that the employees were under Apple’s control when they went through the security screenings, but rather the focus should be on whether the plaintiffs were required to bring items to work.  The defendants claimed that bringing these items to work was only for the employees’ convenience and therefore fell outside the realm of FLSA work time, which does require some element of compulsion.

The Court ruled in favor of Apple.  The Court noted that just because the bag checks solely benefited Apple and were required did not mean that the time was compensable; the employees could have simply not brought the bags to work.  The Court ruled that “plaintiffs could all freely choose not to bring bags to work, thereby avoiding Apple’s restrictions during exit searches.  That free choice is fatal to their claims.”  The Court also found that “Apple’s searches had no relationship to plaintiffs’ job responsibilities; they were peripheral activities relating to Apple’s theft policies.”  The Judge analogized the time waiting for a bag check, simply because the employer benefits by the activity, to the workers being paid for their commute to work because an employer benefits “by physically having its employees on premises.”

The Takeaway

When I give presentations on working time, I stress that there must be an integral connection of the preliminary activity to the primary/work activity for the time to be compensable.  Also, I stress that where there is an element of employer compulsion, this tilts the scales heavily in favor of the time being deemed working time.  Here, the Court concluded that the activity was not integrally connected.

The freedom of choice was the key, as the choice not to bring a bag ostensibly allowed the worker to pass right through and not “lose” any time in the security clearance process.   In scenarios where preliminary time is compensable, the employee cannot do his primary job without engaging in the preliminary work, such as a cashier who needs to balance out their cash drawer before commencing (or finishing) work.  Here, that was not the case.  Although there was employer compulsion, that did not trump the lack of connection to the primary work being done.

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.

Copyright: snvv / 123RF Stock Photo
Copyright: snvv / 123RF Stock Photo

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.”

The Takeaway

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!

  • When do activities engaged in by employees rise to the level of compensable work hours?  Many side activities (so-called soft activities) performed by employees can end up being counted as work time and costing unwary employers thousands of dollars. Learn what types of activities are often at issue in these cases, especially the new “crisis,” suits for time spent working on PDAs and home computers. Join me October 21 for my webinar “Taking Care of Business and Working Overtime.”
  • Are certain industries more vulnerable to wage-hour lawsuits, especially those alleging misclassification (i.e. independent contractors)?   Answer—Yes.  Indeed, the rapidly growing energy industry seems to be susceptible to these lawsuits and this disturbing trend shows little sign of abating. Don’t miss my November 4 webinar “Do Lower Oil Prices Signal A New Wave Of FLSA Actions In The Energy Industry?”
Copyright: paylessimages / 123RF Stock Photo
Copyright: paylessimages / 123RF Stock Photo

This has been a protracted lawsuit; I have used this case (for some years now) as an example when I give seminars on working time and these so-called “email cases.” There has been a geometric explosion of cases over the last decade or so under the Fair Labor Standards Act based on a theory that off-duty, off premises use of emails and PDAs is compensable work.

The City of Chicago has been fighting a huge class action on this issue and the case recently went to trial. The plaintiff’s attorney said, in his opening, that the Chicago Police Department Bureau of Organized Crime (“Bureau”) maintained an unwritten policy of mandating that rank-and-file officers had to be constantly vigilant for important emails and other communications that could be transmitted over their department-issued smartphones. The plaintiffs allege that although the plaintiffs supposedly received about one-hundred emails every day and spent hours on the phone when their shifts were done, they were never reimbursed for this “work time.” The case is entitled Allen v. City of Chicago and was filed in federal court in the Northern District of Illinois.

The Bureau defended by asserting that two written memoranda issued in 2010 and 2013 specifically advised the police officers that they were not required to carry their Blackberries off duty unless they were specifically directed to do so by a supervisor. The City also contended that it did not have a policy of requiring officers to check Blackberries off duty without pay and that officers who did so and submitted overtime request forms for that time were, in fact, paid for the time. The lawyer stated that “those slips always have been approved.” The defense attorney also noted that not one of these unionized employees had ever filed a grievance over such alleged non-payment.

The attorney also suggested that some officers might have been confused by a departmental mandate that the officers maintain an emergency number on file in case they are needed in a hurry. On that note, some officers listed their Blackberry numbers as these emergency numbers, but if there was an emergency, the officer would be telephoned and not receive an email.

The Takeaway

This case, which has dragged on for five years, is an important one because it may shed light on the parameters of when such time is/is not compensable. This is crucial because more and more (e.g. thousands and thousands) of non-exempt workers are given company Blackberries or PDAs and may be ordered, explicitly, or, more troubling, implicitly, to check emails off-duty and respond to them.

It is the element of employer compulsion that breaks the case for the employer and (virtually) ensures success for the plaintiffs. The employer here got out in front of this (I believe) with the two memoranda and also (if true) the fact that employees were paid if they used their Blackberries and put in for the time. By being proactive and informing the affected employees, up front, what the policy and procedures were, this employer has put itself in the best position to successfully withstand the suit.