flsa and electronic overtime: defining work time...

FLSA and Electronic Overtime: Defining Work Time, Leveraging Defense Strategies and Defeating Certification

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WEDNESDAY, FEBRUARY 12, 2014

Presenting a live 90-minute webinar with interactive Q&A

William C. (Cory) Barker, Of Counsel, Paul Hastings, Atlanta

Erika Leonard, Paul Hastings, Atlanta

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DEFINING WORK IN THE CONTEXT OF ELECTRONIC OVERTIME CLAIMS

William C. (Cory) Barker Erika Leonard Paul Hastings, LLP


What Is Work?

• The Fair Labor Standards Act (“FLSA”) Though the Fair Labor Standards Act (“FLSA”) defines “employ”

as including “to suffer or permit to work,” see 29 U.S.C. § 203(g), it does not define “work.”

The Supreme Court has defined work as any activity or

inactivity by the employee that is (1) “controlled or required by the employer” and (2) “pursued necessarily and primarily for the benefit of the employer and his business.” Tennessee Coal, Iron & R.R. Co. v. Muscoda Local 123, 321 U.S. 590, 598 (1944); see also Armour & Co. v. Wantock, 323 U.S. 126 (1944); Skidmore v. Swift & Co., 323 U.S. 134 (1944).

If an activity meets only one part of the two-part Tennessee

Coal test, it is not compensable work. 5


What Is Work?

• The Portal to Portal Act (29 U.S.C. §§ 251-262)

Limits compensable time to activities that are preliminary or postliminary to an employee’s principal activity or activities.

• Principal Activities

The term “principal activities” covers “any work of consequence performed for an employer, no matter when the work is performed.” 29 C.F.R. § 790.8(a).

Principal activities also include all duties, tasks, and actions which are an integral part of the employee’s job, along with all “closely related” duties and tasks, such as preparatory and concluding activities, which are indispensable to the performance of the principal activities. 29 C.F.R. § 790.8(b)-(c).

6


What Is Work?

Preliminary & Postliminary Activities

– Section 4(a)(2) of the Portal-to-Portal Act excludes “activities which are preliminary to or postliminary to [a] principal activity or activities” from the scope of the FLSA. 29 U.S.C. § 254(a)(2); IBP Inc. v. Alvarez, 546 U.S. 21, 40 (2005).

– Activities which are not “integral and indispensable” to an

employee’s principal activities, but which are nonetheless incidental and necessary to an employee’s work, are considered preliminary or postliminary and thus non-compensable. Alvarez, 546 U.S. at 40-42.

– In Alvarez, the court held that waiting time associated with donning and doffing protective gear was a pre-shift activity necessary for employees to engage in their principal activities, but was not a principal activity in itself, and was thus non-compensable. 7


What is Work?

Preliminary & Postliminary Activities

– Espinoza v. County of Fresno, 2011 WL 3359632 (E.D. Cal. Aug. 3, 2011): “Plaintiffs' cleaning and maintenance of their vehicles during off-duty time is not intrinsically related to Plaintiffs' law enforcement function. Making sure a vehicle has sufficient radiator fluid, oil, and tire pressure is not uniquely related to the duties of a Sheriff; rather, such tasks are attendant to any profession in which an automobile is utilized. The cleaning and maintenance Plaintiffs' seek compensation for is related to Plaintiffs' employment only in the attenuated sense that such activities are necessary to safely operate any automobile. As Plaintiffs' off-duty washing and maintenance of their take home patrol vehicles are tasks incidental to use of the vehicles and are not integral to on-the-job performance of the vehicles, they are not compensable under the FLSA.”

– Singh v. City of New York, 418 F. Supp. 2d 390 (S.D.N.Y. 2005) – act of carrying briefcases containing files related to inspections to be conducted by plaintiffs, who were NYC fire alarm inspectors, was non-compensable: “Even accepting as true that bringing the files to the site inspections was necessary for plaintiffs to perform their jobs, that fact without more does not make this activity “integral and indispensable” to the principal activity of the inspections. . . . Like walking from the factory gate to a workstation or waiting to don protective gear, carrying a briefcase is the kind of preshift activity that the Portal–to–Portal Act excludes from the FLSA.” (internal citations and quotations omitted)

8


What Is Work?

Situations Where Employees’ Electronic Activities May Constitute Compensable Work Time:

– Pre/post-shift work (email, online system access, PDAs) – Meal periods – Company travel

– “On call” time

9


What Is Work? Pre-Shift & Post-Shift

Kuebel v. Black & Decker (U.S.) Inc., No. 08-CV-6020, 2009 WL 1401694, at *10 (W.D.N.Y. May 18, 2009):

– Employees’ use of company-provided PDAs was non-

compensable on the ground that the use of the PDAs at home was not integral and indispensable to the employees’ principal activity.

– “Plaintiff asserts that several at-home tasks including reviewing

and responding to company e-mails . . . and synchronizing the company-provided PDA were integral and indispensable to his job since such communications provide him with instructions for carrying out his work at the Home Depot stores. However . . . none of the activities plaintiff performed at home were both “integral” and “indispensable” to him being able to ensure that defendant's products were properly stocked, priced and displayed or that one of his six assigned stores were fundamentally sound.”

10



Dooley v. Liberty Mutual Insurance Co., 307 F. Supp. 2d 234 (D. Mass. 2004):

– Appraisers’ pre-workday activities, which included starting

laptop computers, opening necessary software, checking voice mail, checking email, responding to messages, setting a new voice mail greeting on phones, reviewing the day’s assignments, mapping out a geographical route for the day, and loading the computer, printer, docking station, digital camera, and other supplies into vehicles, were “principal” and thus compensable, as the appraisers’ job duties required them to check email and voicemail, work on computers, and return telephone calls.

11



Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425 (E.D. La. 2005):

– Employees’ pre-shift duties included “daily receipt and

review of emails containing the day’s assignments, organizing the assignments into an efficient route, making customer appointments, and tracking and matching parts for service calls” and post-shift duties included contacting the base operator, boxing parts, and filling out paperwork.

– The court concluded that “some” of the alleged activities,

without identifying which ones, “could be considered ‘integral and indispensable.”

12


What Is Work? – Meal Periods

If an employee is frequently interrupted during a meal by work-related issues requiring immediate attention, the meal period may become compensable as predominantly for the benefit of the employer. Bernard v. IBP Inc., 154 F.3d 259 (5th Cir. 1998).

Where interruptions are minimal and the employees are

otherwise free to run errands or engage in other personal activities, the meal period is predominantly for the benefit of the employee and non-compensable.

See e.g., Henson v. Pulaski Cnty. Sheriff Dep’t, 6 F.3d 531

(8th Cir. 1994) (where the only restrictions on the employees’ time during a meal period arose from the possibility that they may be asked questions by citizens or receive emergency calls from monitoring radios, the meal period was non-compensable).

13


What Is Work?

Employer’s Actual or Constructive Knowledge

– If an “employer knows or has reason to believe that [a worker] is continuing to work [then] the time is working time.” 29 C.F.R. § 785.11.

– An employee is generally only entitled to compensation for hours

of work of which his or her employer had “actual or constructive knowledge.” See Singh v. City of New York, 418 F. Supp. 2d 390, 397 (S.D.N.Y. 2005).

– If an employee fails to utilize the employer’s established system

for recording work hours, the employee may be unable to recover damages in an FLSA lawsuit. See White v. Baptist Memorial Health Care Corp., No. 11-5717 (6th Cir. 2012), cert denied, Oct. 7, 2013.

14


Employer’s Duty to Maintain Records

The FLSA’s recordkeeping requirements can be found at 29 C.F.R. § 516.

Every covered employer must keep certain records for

each non-exempt worker. The Act requires no particular form for the records, but

does require that the records include certain identifying information about the employee and data about the hours worked and the wages earned.

15



An employee who brings a claim for unpaid overtime under the FLSA “has the burden of proving that he performed work for which he was not properly compensated.” Anderson, 328 U.S. at 686-87.

The plaintiff’s burden of proof varies depending upon

whether the employer maintained records of hours worked by the employee. Anderson, 328 U.S. at 686-87; Seever v. Carrols Corp., 528 F. Supp. 2d 159, 169 (W.D.N.Y. 2007).

16



Where the employer has not kept records of the hours worked by the employee pursuant to the FLSA’s requirements, the employee need not prove the precise amount of work he or she performed off-the-clock. The employee must instead “produce … sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Anderson, 328 U.S. at 687.

This lesser burden of proof does not apply where “the

time record deficiencies are admittedly and voluntarily self-created” by the employee. Seever, 528 F. Supp. 2d at 170.

17



What does the employer’s duty to maintain records mean in the context of work performed with electronic devices?

Although employers have prevailed in some litigation where they have argued that they provided a mechanism for reporting time and employees did not use that mechanism, work performed on electronic devices poses additional challenges due to the relative ease of capturing this time.

18


The De Minimis Defense

“When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act.” Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 692 (1946).

Under the de minimis defense, employers are not liable

for small amounts of uncompensated time, so long as that time is 1) limited, 2) irregular, and 3) administratively difficult to track. See Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984).

19



• The doctrine is codified in the federal regulations at 29 C.F.R. § 785.47:

“In recording working time under the Act, insubstantial or

insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded . . . This rule applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.”

20



• Amount of Compensable Time Generally:

Although “[n]o rigid rule can be applied with mathematical certainty,” Lindow, 738 F.2d at 1062, most courts have found daily periods of approximately ten minutes or less to be de minimis.

Periods over ten minutes generally will not meet the

exception. It is also important to note that courts have granted relief “for

claims that might have been minimal on a daily basis but, when aggregated, amounted to a substantial claim.” See Lindow, 738 F.2d at 1063.

21


The De Minimis Doctrine

• The U.S. Supreme Court’s recent decision in Sandifer v. U.S. Steel Corp., Slip Op. No. 12-417 (Jan. 27, 2014), rejected the application of the de minimis doctrine in the donning and doffing context, finding it illogical to “select among trifles” by parsing out the number of minutes spent changing clothes versus the number of minutes spent donning and doffing other items.

• The Court instead analyzed the donning and doffing period as a whole, determining that the time spent donning and doffing other items was inconsequential compared to the “vast majority” of time spent changing clothes: “[T]here is no more reason to disregard the minute or so necessary to put on glasses, earplugs, and respirators, than there is to regard the minute or so necessary to put on a snood. . . . The question for courts is whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes or washing[.]’”

• The Court’s opinion may have broader implications for the de minimis doctrine in other contexts, suggesting that the Court disfavors the doctrine and is likely to apply a “vast majority” rule instead, the precise definition of which is still to be determined.

22



Amount of Compensable Time in the Class Action Context:

Some courts have analyzed the de minimis rule in relation

to the total sum involved in the class litigation as a whole.

See Franklin v. Kellogg Co., No. 08-2268, 2009 WL 6093442, at *6 (W.D. Tenn. July 20, 2009) (“Moreover, nearly 250 other employees have joined Plaintiff’s lawsuit . . . which further increases the aggregate amount.”), rev’d in part on other grounds, 619 F.3d 604 (6th Cir. 2010).

23



Amount of Compensable Time in the Class Action Context:

Other courts have considered aggregate time on a per-employee, as

opposed to class-wide, basis.

o See Chao v. Tyson Foods, 568 F. Supp. 2d 1300 (N.D. Ala. 2008), plaintiffs argued that the aggregate amount of uncompensated time could not be de minimis because the lawsuit covered “thousands of employees over a period of seven years.” 568 F. Supp. 2d at 1318.

o “[T]he proper focus is on the aggregate amount of uncompensated time for each employee per day, not the total number of employees over any length of time. Moreover, any damages will be individual damages and will vary from employee to employee. Thus, it is not appropriate to aggregate the time spent by multiple employees, and it is equally inappropriate to aggregate that time over a period longer than a single workday.” Id. at 1319-20 (emphasis in original).

24



Regularity of the Work

– Sporadic uncompensated pre-shift work may qualify as de minimis. See, e.g., Lindow, 738 F.2d at 1063 (noting that although employees reported to work early every day they did not always perform compensable duties before their shifts); Atkins v. Gen. Motors Corp., 701 F.2d 1124, 1129 (5th Cir. 1983) (affirming lower court’s finding that two isolated instances of uncompensated pre-shift work over a 6-8 week period were de minimis).

– Where employees are required to engage in the same activity on

a consistent, daily basis, it is unlikely to be de minimis. Reich v. Monfort, Inc., 144 F.3d 1329 (10th Cir. 1998) (10 minutes per day spent by meat processing plant employees putting on safety equipment prior to shift was not de minimis because it occurred daily and was a large amount of time in the aggregate despite administrative difficulty in recording it).

25



Administrative Difficulty in Recording the Time

– “The de minimis rule is concerned with the practical administrative difficulty of recording small amounts of time for payroll purposes.” Lindow, 738 F.2d at 1062.

– In Lindow, the pre-shift time at issue was spent on both

work and social activities such as drinking coffee and chatting with coworkers. The commingled work time, the court concluded, would be administratively difficult to record. 738 F.2d at 1063-64.

26


Portal to Portal Act

The Portal to Portal Act (29 U.S.C. §§ 251-262)

– In 1946 the Supreme Court held in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), that the time industrial workers spent walking to their work stations after punching a time clock counted as compensable work.

– Congress felt the finding in Anderson was too generous to employees and too harsh to employers and in response, in 1947, amended the FLSA by passing the Portal-to-Portal Act.

27


Portal to Portal Act

• The Portal to Portal Act (29 U.S.C. §§ 251-262)

The Portal to Portal Act limits compensable time by excluding walking, riding, and traveling to and from the place of work, as well as activities which are preliminary or postliminary to an employee’s principal activity or activities.

These otherwise non-compensable activities may become compensable (1) under the terms of an express written or unwritten agreement between an employee, his agent, or his collective bargaining representative; or (2) by a custom or practice in effect at the time of the activity. 29 C.F.R. § 785.9(a).

28


Continuous Workday/Commute Time

Normal commute time to and from the place of work is non-compensable under the Portal to Portal Act. However, preliminary and postliminary activities which are integral and indispensable to the employee’s primary activities are compensable.

What about employees who are “dispatched” daily from

their homes to various worksites? The commute to the first job and home from the last job is noncompensable “normal commute time.” 29 CFR § 785.35. Travel between each job site during the work day (“travel that is all in a day’s work”) is compensable work time. 29 CFR § 785.38.

29



When an employee who regularly works at a fixed location is given a special one-day work assignment in another city, this is similar to compensable “travel that is all in a day’s work,” but the “commute” to the point where “travel” commences can be deducted. 29 CFR § 785.37.

What if an employee engages in work at home before the commute to his assignment, and engages in work at home after the commute back from his assignment?

Plaintiffs seek compensation under the theory that this constitutes one continuous work day from the first preliminary activity to the last postliminary activity.

30



Rutti v. Lojack Corporation, Inc., 596 F.3d 1046 (9th Cir. 2010)

– Collective action on behalf of technicians that installed Lojack car alarms, seeking compensation for preliminary and postliminary activities performed at their homes.

– Non-compensable preliminary activities included: logging into a

handheld device to receive his daily jobs, mapping routes to the assignments, and prioritizing jobs. Such tasks were not integral to principal activities, because they related to plaintiff’s commute, and/or they were de minimis, because there was no evidence to suggest they took “more than a minute or so.”

– Compensable postliminary activities included: daily data uploads

about his work (which had to be uploaded from home because it required the use of a modem provided by the employer). This task was “part of the regular work of the employees in the regular course of business,” “necessary to the business,” and “performed … primarily for the benefit of the employer.”

31



Kuebel v. Black & Decker Inc., 643 F.3d 352 (2d Cir. 2011)

– Collective action on behalf of retail specialists who worked out of their homes and performed product merchandising and marketing for Black & Decker at retail stores.

– Court affirmed summary judgment on commute time claims. – Plaintiff was compensated for any time to the first store and

home from the last store that was in excess of one hour each way. The first 60 minutes of each commute was not compensable under a continuous workday theory, even if the at-home preliminary and postliminary tasks were integral and indispensable to plaintiff’s primary activities, because plaintiff controlled when he did these tasks and could not make his commute compensable by choosing to do them before he left the house or as soon as he arrived home.

32


On Call Time

The standard for compensability of on call time requires consideration of whether that time is spent predominantly for the benefit of the employer or the employee. Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944); Singh v. City of New York, 524 F.3d 361, 368 (2d Cir. 2008).

Time that is spent for the benefit of the employer is

“working” time and is compensable; time that is spent for the benefit of the employee is “personal” time and is not compensable. See id.; 29 C.F.R. § 785.15.

33


On Call Time

The following factors weigh into the on call analysis:

– Whether employees are free to leave the employer’s premises while on duty. 29 C.F.R. § 785.17 (where an employee is free to leave the employer’s premises but is merely required to leave word with company officials where he may be contacted, the on-call time is not compensable)

– Boehm v. Kansas City Power and Light Co., 868 F.2d 1182, 1185 (10th Cir. 1989) (applying this analysis to hold that on call time was not compensable for power company linemen who were free to leave employer's premises during their on call time and did so, and were free to use their off-duty time as they wished, provided only that they could be contacted and report for work one third of time that they were called) 34


On Call Time


– Whether there are excessive geographical restrictions on employees’ movements while on call. See Owens v. Local No. 169, Ass'n of Western Pulp and Paper Workers, 971 F.2d 347, 351 (9th Cir. 1992) (internal citations omitted).

– Whether employees receive a high frequency of calls that

unduly restrict their ability to engage in non-work-related activities. Id.

– Whether employees are required to respond to calls within

a fixed number of minutes, such that they are unduly restricted from engaging in personal activities. Id.

35


On Call Time


– Whether employees can easily trade duty shifts with other employees. Id.

– Whether employees carry pagers or cell phones, so that

they do not have to stay by a land-line telephone while on call. Gilligan v. City of Emporia, Kan., 986 F.2d 410 (10th Cir. 1993) (on call time of city water and sewer department employees not compensable where employees were free to use their off duty time for personal pursuits but were only required to wear pagers and to refrain from consuming alcoholic beverages)

36


On Call Time


– Whether employees actually engaged in personal activities during on-call time. Owens, 971 F.2d at 351; Brock v. El Paso Natural Gas Co., 826 F.2d 369, 370 (5th Cir. 1987) (on call time of employees at satellite pumping stations for natural gas pipeline not compensable where employee is free to eat, sleep, entertain guests, watch television, or engage in any other personal recreational activity, alone or with his family, as long as he is within hailing distance of the alarm and the station in case of emergency).

37


On Call Time

O’Neill v. Mermaid Touring, Inc., 1:11-cv-09128 (S.D.N.Y.)

– Plaintiff Jennifer O’Neill worked as a personal assistant for

Stefani Germanotta, a.k.a. “Lady Gaga,” from about February 5, 2010 through her termination on March 5, 2011. O’Neill received a flat rate of $75,000 per year.

– O’Neill sued Lady Gaga and her company for unpaid

overtime, claiming that she was “expected to be working and/or on call every hour of every day” during her employment with Defendants and, as a result, she was owed overtime pay for every hour of every day beyond forty-hours per week for every week of her employment.

38


On Call Time


– O’Neill claimed that she was required to be available to

Lady Gaga 24/7: “I'm always working 24/7 because I'm on call. My phone is on, I'm expected to carry my phone with me at all times, to pick up the phone no matter what I'm doing, no matter where I am, and tend to whatever it is that [Germanotta] needs. So I consider myself to be on call 24/7 and available for her 24/7.”

– O’Neill often shared a hotel room bed with Lady Gaga on

tours and said that Lady Gaga would awaken her in the middle of the night to change DVDs that she had grown tired of watching or take care of other chores. 39


On Call Time


– O’Neill’s lawsuit sought overtime pay for every hour of

every day beyond forty-hours per week for every week of her employment.

– The court denied defendants’ motion for summary

judgment on O’Neill’s claims, finding that “[i]t [was] a jury question how much of O'Neill's ‘on-call’ time was ‘so circumscribed [by Lady Gaga]’ that O'Neill was restricted from ‘effectively using the time for personal pursuits.’”

40


Best Practices

Best Practices for Capturing & Recording Electronic Activities – Effective policies/training to inform employees of reporting

obligations

– Mechanisms to capture time outside working hours

– Limit use of remote devices to employees who truly need them

– Electronic lock outs

41


Best Practices

Effective policies/training to inform employees of reporting obligations – Effective policies should educate employees that time spent on

company business using an electronic device, even outside work hours, is compensable.

– Effective policies should also educate supervisors about the compensable nature of work outside hours, even when the amount of time at issue is small.

– It’s crucial that management understand that connectivity can lead to compensation obligations. It may be valuable to the business to have employees interface with co-workers, bosses, or customers outside of work via electronic devices but employees should also be compensated for that time.

– An effective policy should also be acknowledged by each employee who receives a portable electronic device as part of the terms of use for that device.

42


Best Practices

Mechanisms to capture time outside working hours – One of the reasons that time worked on electronic devices

is not worked is that many workplaces lack a simple means for reporting that time.

– Time worked outside of company premises may require manual time edits or other mechanisms that are cumbersome.

– Companies often need to manage labor costs and do not want employees working without approval outside their regularly scheduled hours.

43


Best Practices

Mechanisms to capture time outside working hours – Web portals for time entry that are accessible to

employees off site and after hours.

– PDA/smart phone applications are ideal, particularly if they interact directly with the time keeping system.

– Voluntary time reporting via a PDA/smart phone is preferable to a system that performs remote monitoring of device activity

– Even something as simple as an email or time sheet that an employee can complete and submit is sufficient.

44


The Wage & Hour Division has created an iPhone App, available in the App Store for free, that employees can use to track their work hours, breaks, and earned wages.

DOL Timesheet – iPhone App

45



Employees can use the app to record their hourly rate, work hours, and meal and rest breaks. The app tracks the employee’s work hours on a daily, weekly, and monthly basis and notifies the employee when he or she has earned overtime in a particular week. 46



The first time employees go to add a meal break, a primer on the compensability of meal and rest periods pops up within the app, directing employees to contact the WHD with questions regarding break time deductions. Employees may also add comments regarding their meal breaks. 47


The app includes a glossary defining, among other terms, “employer workweek,” “gross pay,” and “regular rate of pay,” providing links to the DOL’s website for further information on minimum wage and the FLSA. The app also instructs employees on how to contact the Wage and Hour Division.


48


Best Practices

Limit use of remote devices to employees who truly need them – In many workplaces, electronic devices or remote access

provided by the company may provide a degree of status to the employee or the supervisor

– Provision of these devices should not be routine. If the company would have concerns about paying additional time, including overtime, for use of the device, then it should question whether the employee should receive it.

49


Best Practices

Electronic lock outs – There may be circumstances where employees are using

company electronic devices in violation of prohibitions of off the clock work.

– One way to limit or prevent claims for off the clock time is to limit the employee’s opportunities to utilize company equipment when off the clock.

– It is often possible to configure cash registers, portable point of sale and other devices (including computers) not to allow the employee access unless he or she is clocked into the time clock.

– Consider providing opportunities to use the internet for personal purposes away from their desks during break or meal times.

50


Best Practices

Reduce the likelihood that on call time will be deemed compensable by:

– Not requiring the employee’s presence at any particular location to

perform the work, if called – Providing additional equipment or technology to permit work to be

performed remotely – Providing the longest possible amount of time to respond, if called – Permitting employees to trade “on call” shifts – Monitoring the frequency of calls – Entering into written on-call agreements specifying on-call

expectations

51


Best Practices

Management Training

– Inform managers that they should be mindful of sending emails and leaving voicemails after hours, as this can be used as evidence that employees were expected to be working then, or expected to be monitoring email traffic after hours (also may be used to establish that management suffers or permits after hours work without it being recorded)

– Effect of innocuous-sounding comments from management like

“be available to take calls at the start of your shift” or “be responsive to your clients when they call you” that leave the impression that logging in should occur pre-shift or that employees are expected to be “on call” for clients

52


Best Practices

Employee verification of time records:

– Establish processes by which employees verify their electronic time records; employers who use paper records being diligent and auditing records so an employee doesn’t record exactly 40 hours every week

Time-saving strategies:

– Use password time-savers that allow employees to log in into multiple systems at once; being mindful of the fact that adding additional programs and functionality can impact log-in time (and could change the employer’s de minimis analysis)

53


Low Hanging Fruit, From Plaintiffs’ Perspective:

Challenges addressed to practices or policies that cover entire job titles, categories, or even entire companies (arguably lower bars to certification than cases alleging off-the-clock work at the direction or encouragement of particular managers)

Changes to job duties or the use of technology that require

additional log-in/boot-up and log-out/shut-down time Employees who regularly receive (or send) emails,

voicemails, texts or other time-stamped communications from managers after normal business hours

54


Low Hanging Fruit, From Plaintiffs’ Perspective:

Employees whose first electronic time-stamp (badge swipe or other security entry record) is substantially earlier than their start time

Employees who are contacted directly by

customers/clients and are arguably expected to respond promptly

Targeting industry-specific practices (i.e., log-in time at

call centers, time clocks located at the back of retail establishments)

55


Class/Collective Actions

Electronic records of time worked are an increasing factor in wage and hour litigation – particularly class/collective action cases.

Lawyers may often view electronic records as a means to avoid burden issues in obtaining/defending class status, as well as proving damages.

Electronic time stamps generated by smart phones, portable devices, computer applications and even computers operating systems may become a key part of class discovery.

56


Class/Collective Action Issues

Use of electronic timestamps in company devices – In class and collection actions, it is not uncommon for

plaintiffs to seek to prove damages by identifying evidence of work through use of electronic systems.

– The theory is that one can compare the time that an employee is sending email, logging into a computer system, or using another electronic device with the times that the employee is clocked into the employer’s time keeping system. Where there are discrepancies, plaintiffs will argue evidence that this is time that has not been paid.

57



Use of Electronic Time Stamps – For example, in a retail store environment, plaintiffs may seek

data from hand held point of sale devices or cash registers and compare those to timekeeping records to identify “off the clock” time during meal periods or before or after shifts.

– This type of data comparison is much harder in practice than theory.

– Individual electronic systems are often not synchronized to the same time, which makes it very difficult to compare them. Even minor differences in the synchronization can invalidate any comparison – particularly where only small amounts of time are at issue.

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– Not only may it be difficult to compare the data once you obtain it, actually obtaining data is far more challenging than it may seem.

– Systems may not retain the type of data sought.

– The data may be difficult to extract or utilize.

– Preservation and extraction of data can result in expensive discovery battles.

– To credibly use timestamp data, one must utilize an expert to perform the comparison and provide testimony on the methodology utilized.

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Risks of Data Classes – Electronic data regarding potential work is not limited to potential

proof for damages.

– Plaintiffs’ counsel can also seek to define a potential class through the use of electronic data.

– One of the biggest challenges to certifying a class under Rule 23 or opposing a motion for de-certification under the FLSA is the need to demonstrate that liability and damages can be shown via common proof

– Defining a class based on potential unpaid time that is demonstrated through data can be a powerful means of providing common proof.

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Examples of potential data class definitions: – All individuals logged into employer’s cash register system

while not clocked into employer’s time keeping system. – All individuals using remote electronic devices while not

clocked into employer’s time keeping system.

Why are data classes relatively uncommon? – Data is challenging to work with. – Data classes are usually relatively narrow and a narrower

class is a smaller class. – Lawyers often aren’t very data savvy!

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Tips for Defeating Class/Collective Actions Focused on Electronic Data – Gather factual evidence that demonstrates that data does

not tell the entire picture.

– Attack the reliability of the data for use in compensation analysis.

– Challenge the methodology used to identify alleged off the clock time.

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Questions?

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Lawyer Bio

William C. (Cory) Barker

Of Counsel Atlanta Phone (404) 815-2379 Fax (404) 685-5379 [email protected]

Employment Law

Successfully defended employers in dozens of class and collective actions in the telecommunications, transportation, manufacturing, financial services, retail, and restaurant industries.

Particular focus on electronic discovery.

Selected by his peers for inclusion in The Best Lawyers in America© 2014 in the field of Litigation - Labor and Employment

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Lawyer Bio

Erika L. Leonard Senior Associate Atlanta Phone (404) 815-2420 Fax (404) 685-5420 [email protected]

Employment Law

Erika’s practice includes defending clients in the airline, retail, manufacturing, telecommunications, and financial services industries in a wide range of employment matters. She has successfully represented clients in nearly a dozen wage and hour class/collective actions, as well as numerous single-plaintiff employment discrimination cases, appellate litigation, and traditional labor matters.

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For further information, you may visit our home page at www.paulhastings.com or email us at [email protected]

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flsa and electronic overtime: defining work time...

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