July 22, 2019

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Lessons from Supreme Court: Do Not Settle for Average, Keep Exceptional Time Records

Much litigation has been directed at exposing and litigating the uncertainties posed by the Fair Labor Standards Act (FLSA) in the area of donning (i.e., putting on) and doffing (i.e., taking off) personal protective equipment (PPE). The Supreme Court has recently entered the fray, and in its recent decision approving the use of statistical information to establish the requirements for class certification, the court has also underlined the importance of keeping good time records whenever possible.

Employers have long struggled to identify a fair and economically reasonable way to compensate employees for the amount of time spent donning and doffing PPE at the start and end of a shift under the framework of the FLSA and the Portal-to-Portal Act. “Time worked” under these laws includes time spent on activities that are “integral and indispensable” to an employee’s regular work, but does not include time spent walking to and from an employee’s work station or other “preliminary or postliminary activities.”

Confused yet? You are not alone. Manufacturers, food processors, and other large-scale production employers whose workers wear PPE are particularly exposed to the uncertainties as to whether and how best to measure and compensate time spent donning and doffing PPE.

In the Supreme Court’s recent decision, pork-processing workers brought a class action over uncompensated time spent donning and doffing required heavy-duty PPE, such as hard hats, work boots, hairnets, aprons, gloves and earplugs, and also for time spent walking. The employer did not require workers to record their donning and doffing time, but instead paid some – but not all – workers a flat four to eight minutes of extra time it estimated the donning and doffing activities took. After a jury found the donning and doffing time was compensable and awarded the workers $2.9 million (later upped to $5.8 million after a subsequent ruling on liquated damages), the employer appealed, arguing in part that the class members’ unpaid wage claims were too distinct among them to maintain the suit and the damages award. In other words, Tyson argued that because of the variance in the PPE each employee wore and the amount of time it took each worker to don and doff that gear, the employees’ claims were not sufficiently similar to be resolved on a class-wide basis.

To prove their claims, the workers relied on an analysis of live observations of the time 744 of the class members spent donning and doffing. Their expert witness then used these data to average the time spent across the class and added the estimates to the timesheets of each employee to ascertain the value of the class-wide damages. The employer did not rebut the expert’s analysis, instead arguing that the class should not have been certified based on “extrapolation and averaging” of the various class members’ individual claims despite differences in the amount of time workers actually spent donning and doffing PPE. This class-wide averaging, it contended, could lead to compensation for employees who never actually worked more than 40 hours in a workweek. The Supreme Court disagreed.

Importantly, the employer had no evidence to combat the expert’s analysis because it had none of its own time records demonstrating the actual time its workers spent donning and doffing. The Supreme Court found that the workers’ analysis was permissible to “fill an evidentiary gap” created by the failure to keep those time records. “Because a representative sample may be the only feasible way to establish liability, it cannot be deemed improper merely because the claim is brought on behalf of a class,” Justice Kennedy wrote. The employees can thus “show that [the expert witness’] sample is a permissible means of establishing hours worked in a class action by showing that each class member could have relied on that sample to establish liability had each brought an individual action.”

While the Supreme Court cautioned that its ruling was not a broad rule governing the use of representative and statistical evidence in class actions, the recent case is nonetheless a lesson in the importance of accurate record keeping. While there are many practical and economic problems employers face in requiring workers to record their donning and doffing time, doing so is one way to fend off class action liability, or, if such liability exists, an efficient way of estimating the potential liability and avoiding extensive litigation over how to calculate and prove the amount of potential damages.

© 2019 Foley & Lardner LLP


About this Author

John Litchfield, employment lawyer, labor litigator, Foley Lardner, Chicago Law Firm

John Litchfield is an associate and litigation attorney with Foley & Lardner LLP. His primary practice includes counseling clients on a wide range of employment-related matters, including disability accommodations, family and medical leave issues, wage and hour compliance, and other state and federal employment laws. Mr. Litchfield also counsels clients on the intricacies of the Genetic Information Non-Discrimination Act of 2008. He has represented employers in federal and state litigation matters relating to race and disability discrimination, FMLA claims, and...