Supreme Court upholds pay for employees’ work despite lack of records
IN some industries, employees perform work-related activities before they clock in. Some do it after they clock out. These are called preliminary and postliminary work. It is important to know because time spent for these activities, although not recorded, should be paid to employees. However, employees do not get paid every time as the following case illustrates.
Employees at Tyson Foods’ pork processing plant in Iowa is a place where hogs are slaughtered, and prepared for shipment. Because the work is dangerous, employees are required to wear protective gear to do their jobs. Employees wear different gear depending on the tasks they perform during a shift.
Employees at the plant were paid under a system called “gang-time,” which pays them only for time spent at their workstations, not for the time required to put on and take off their protective gear. In 1998, in response to lawsuits, Tyson began to pay all its employees an additional four minutes a day for what the employer says is its estimated amount of time that employees needed to put on and take off their protective gear. However, in 2007, Tyson stopped paying the extra 4 minutes to all employees. Instead, it paid only some employees for between four and eight minutes, and paid the rest of them nothing except their gang-time wages.
Tyson never recorded the time each employee spent putting on and taking off their protective gear. Unsatisfied by the changes in pay, the employees sued Tyson in a class action, claiming overtime violations under federal law. The employees claimed that putting on protective gear before and taking the gear off after work are activities that are integral and indispensable to their dangerous work. They argued that time spent for these activities should be paid. The law also requires the employer to keep records of its employees, including hours worked, wages paid, and other required information.
The employer opposed the class action. It argued that different employees wear different protective gear and the amount of time it takes to put on a gear depended on what kind of gear it is. Some gear take a longer time to put on and others take only a few minutes. Therefore, the employees have different claim amounts and these claims cannot be resolved as a class. However, the trial court allowed the class action to proceed to trial.
In order to recover overtime wages, the employees had to show that they each worked more than 40 hours a week, excluding the time spent putting on and taking off their protective gear. Because the employer did not keep records of the time employees spent doing this, the employees’ attorneys had to hire an industrial relations expert to figure it out.
The expert conducted 744 videotaped observations and analyzed how long it took employees to put on or take off their protective gear. He estimated that, on average, employees at the cut and re-trim department took 18 minutes a day and employees at the kill department took 21.25 minutes a day to put on and take off their protective gear. These estimates were then added to the timesheets of each employee to find out which employees worked more than 40 hours a week and what was the total wages owed to the entire class. These items were presented to the jury during trial. The jury returned a verdict in favor of the employees and awarded the employees $2.9 million in unpaid wages.
The employer wanted the jury verdict thrown out and the case went all the way to the U.S. Supreme Court. The employer argued to the Supreme Court that the case should not have gone to trial as a class action because each employee has different damages. The employer said that it was “unfair” to allow the employees to use the statistical sample derived by the expert as evidence of each of the employee’s damages because not everyone spent the same amount of time putting on and taking off their gear.
The high court ruled that the employees should be allowed to prove their damages by using “reasonable inference”. This can be shown by the statistical sample used by Tyson’s expert to obtain an average of how long it took to put on and take off protective gear. Statistical sampling is acceptable especially in this case where the employer violated its legal duty to keep proper records which prevented the employees from proving the exact number of hours that they were not paid.
Employees should not give up when their unpaid work is not reflected in the company records. There are creative ways that experienced employment practitioners can creatively utilize to prove their claims.
* * *
The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com.
* * *
C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant recoveries for thousands of employees and consumers. He is named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a member of the Million Dollar-Advocates Forum.
