May 30, 2023

Volume XIII, Number 150


May 29, 2023

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$22 Million FLSA Verdict Illustrates the Significance of Brief Unpaid Work Tasks

On May 9, the U.S. Department of Labor (“DOL”) secured its largest Fair Labor Standards Act (“FLSA”) jury verdict in history, when a jury in the Eastern District of Pennsylvania awarded $22 million to a class of approximately 7,500 workers for unpaid time spent on pre- and post-shift activities.  The case is Su v. East Penn Manufacturing Co., E.D. Pa. Civil Action No. 5:18-cv-01194-GEKP.

Under the Portal-to-Portal Act amendments to the FLSA, codified at 29 U.S.C. § 254(a)(2), employers are not required to pay for time spent on preliminary or postliminary activities that occur before or after the principal activity an employee is employed to perform, except for tasks that are “integral and indispensable” to the principal activities.  Ambiguity over what tasks are “integral and indispensable” has contributed to litigation in recent years regarding activities such as bag checks, other security screenings, and COVID-19 health screenings, among other allegedly compensable tasks.

The DOL sued East Penn Manufacturing (“East Penn”), a lead battery manufacturer, in 2018, alleging that the company failed to pay wages for time spent by non-exempt employees changing into uniforms, donning and doffing personal protective equipment (“PPE”), and showering after shifts.  The DOL alleged these activities were integral and indispensable to the work of manufacturing batteries, which involves exposure to toxic materials including lead, cadmium, arsenic, sulfuric acid, and ammonia.  East Penn argued that these were generic safety measures taken by employees in numerous industries and settings, and were not inherent to the employees’ work.

On summary judgment, the district court agreed with the DOL, ruling that the activities at issue were compensable as a matter of law.  There was also no dispute that the activities were unpaid.  At trial, the jury was tasked with evaluating East Penn’s defenses (including that the work was de minimis), and if it found liability, deciding whether the violations were willful and awarding damages.  After a 30-day trial, the jury rendered its record-setting verdict.

The East Penn case is a sobering reminder that even brief preliminary and postliminary activities may present thorny legal issues that can add up to serious liability.  The risk may be even greater in states such as California, New York, Massachusetts, and others where steep penalties are potentially available or, in the case of California, where the definition of compensable time expands beyond the Portal-to-Portal Act’s limits.  Employers are well-advised to pay careful attention to such issues and consider partnering with sophisticated employment counsel to minimize risk.

© 2023 Proskauer Rose LLP. National Law Review, Volume XIII, Number 143

About this Author

Allan Bloom, Litigation Attorney, Proskauer Rose Law Firm

Allan Bloom is an experienced trial lawyer who represents management in a broad range of employment and labor law matters. He has successfully defended a number of the world’s leading financial services, investment management, technology, consumer products, telecommunications, publishing, insurance, construction, and lodging companies, as well as global law firms and cultural institutions, against claims for unpaid wages, employment discrimination, breach of contract, and wrongful discharge, both at the trial and appellate court levels.

Phillipe Lebel labor & Employment Attorney Los Angeles Proskauer Law Firm

Philippe (Phil) A. Lebel represents employers in all aspects of employment litigation, including wage and hour, wrongful termination, discrimination, harassment, retaliation, whistleblower, trade secrets, and breach of contract litigation, in both the single-plaintiff and class-action context, at both the trial and appellate level, and before administrative agencies. Phil also represents employers in connection with labor law matters, such as labor arbitrations and proceedings before the National Labor Relations Board. Additionally, Phil counsels clients to ensure compliance with federal...

Jonathan P. Slowik Los Angeles Employment Law Proskauer
Special Employment Law Counsel

Jonathan Slowik is a special counsel in Proskauer's Los Angeles office, where he is a member of the Labor Department and Employment Litigation & Counseling Group.  His focuses include employment arbitration, employment counseling, and employment training. He received his J.D. from the University of California, Los Angeles, School of Law.

Law Clerk

Morgan Peterson is a law clerk in the Labor Department and a member of the Employment Litigation & Arbitration Group.