Archives: Nielsen

I have often discussed the issue of lawsuits (usually collective actions) for off-the-clock claims and preliminary and postliminary work claimed to be compensable.  These are usually mundane activities and usually done for only a few minutes, but when the minutes occur every day, every week and there is a large group of employees engaging in the activities, the aggregate exposure can be substantial.  Technician-type employees or field service personnel are a prime breeding ground for such lawsuits. Another example of this phenomenon has now surfaced in the federal courts.

A field representative has launched a class action in federal court in Florida, alleging that he and a large group of similarly situated employees were compelled to work overtime hours, without being properly paid.  The case is entitled Salamanca et al. v. TNC (US) Holdings Inc.

These field representatives performed technical job duties.  They visited customer homes, in their geographic territories, to perform a number of customer-relation as well as technical functions.  For example, they would stay with the customer to show him how to handle and work with the equipment.  They allege they also received nightly error reports, relating to malfunctions in the equipment and they were compelled to remain on call for issues arising for customers in their designated areas.

An interesting twist is that the plaintiffs contend that the company’s GPS records and the Company-issued phones will provide the best evidence of the hours they worked.  This might then be a case where the accuracy of the employer’s records is the “worst” evidence against it for not only would these devices show the actual minutes/hours worked, they would also evidence that there was a fair amount of this “work” and it was necessary for the performance of the plaintiffs’ jobs.

The lesson here is that employers who provide any kind of PDAs or cell phones or any kind of equipment must scrutinize the employees’ usage of those devices and whether any such usage is occurring before or after the “usual” work day ends.  If employees must plan their routes for the next day while at home the evening before, the company may be liable for compensation.  Similarly, any job-related activities that employees are engaging in (e.g. showing customer how to use the equipment after installation) must also be looked at to determine whether the activity is sufficiently related to the primary job to warrant compensation.