I have defended many off-the-clock working time cases and I submit that they are very dangerous for employers. This is because they are particularly amenable to class certification because it is likely that there is a common policy applicable to the members of the class. This premise is highlighted by a recent settlement for a class of security guards employed by a security and facility services at JFK International Airport. The settlement is $2.52 million deal. The case is entitled Douglas v. Allied Universal Security Services et al., and was filed in federal court in the Eastern District of New York.
The plaintiff, Kirk Douglas, requested court approval of the settlement through a motion that labeled the settlement fair and reasonable. The motion stated that “in short, while plaintiff continues to believe in his case, and class counsel has and will continue to capably represent their client’s interests in litigation and mediation, they recognize that Allied has presented significant, and potentially dispositive arguments, that pose a significant risk to their chances for class-wide recovery, and this favors preliminary approval.”
The theory of the case was that the employees were compelled to drive to their bases before they clocked out for the day and they were required to do paperwork after their shifts. There was also an allegation that the employees worked through lunch time. The employees in the class (which totaled about six hundred people) were airport security agents, operations assistants and employees dubbed Tour Supervisors, who were claimed to really not be exempt employees.
The settlement came to be after a mediation. The plaintiffs asserted that while they believed in the rightness of their claims, the Company “has mounted considerable defenses to liability and damages.” In that regard, the Company resisted the contention that the employees were actually performing “work” in these off-the-clock situations. The motion asserted that the proffered settlement was “a good value” given the risks inherent in the litigation. The motion stated that “in class counsel’s estimation, the settlement represents a meaningful percentage of the recovery that the class members would have achieved had they prevailed on all their claims, survived an appeal, and sought to enforce and collect upon a judgment.”
The activities alleged to be working time in this case are troubling because they are the kind that a good-faith, well intentioned employer might not perceive to even be “work.” That is the problem. Employers have to be aware that any activity that they either compel their employees to perform or which are integral to their jobs may be working time and therefore, compensable.
At least be aware of the possibility…