In Bobbi-Jo Smiley v. E.I. DuPont, No. 14-4583, Slip Op. (3d. Cir. 10/7/16), a case of first impression in Pennsylvania, workers at DuPont’s Pennsylvania manufacturing plant worked 12-hour shifts. They had to be on site before and after their shifts to “don and doff” their uniforms and protective gear; they also had to share information with the next shift workers. This time averaged 30 to 60 minutes a day.
DuPont voluntarily provided paid meal breaks though there was no Fair Labor Standard Act (“FLSA”) requirement to do so. The paid break times always exceeded the amount of time the workers (“Plaintiffs”) spent donning and doffing and sharing information. The Plaintiffs sought to be paid overtime compensation for the time spent donning and doffing. DuPont refused, arguing that it had the right to offset the paid breaks it voluntarily provided against the unpaid donning and doffing and shift sharing information time.
The District Court dismissed the Plaintiffs’ case holding that the FLSA allowed DuPont to use paid non-work time to offset the required overtime as the amount of the paid non-work time exceeded the unpaid work time. While the FLSA does not expressly allow this, the District Court concluded it was not specifically prohibited either.
On appeal, the Third Circuit invited the U.S. Department of Labor (“DOL”) to join to assist “in understanding the intricacies of the important FLSA issue presented …” The Court noted its duty to defer to the DOL position and guidelines; this did not bode well for DuPont. The DOL determined that the overtime compensation should not be offset, construing the FLSA liberally in favor of employees and noted that exceptions should be construed narrowly against the employer/DuPont.
The Third Circuit agreed with the Plaintiffs and DOL, holding that the paid meal break time was “on duty” time, even if it was “non-productive work time.” “To the extent that those hours are regarded as working time, payment made as compensation for these hours cannot be characterized as payments not for hours worked.” This is a “fact dependent determination.” “Thus, if the time at issue is considered hours worked under the Act, the corresponding compensation is included in the regular rate of pay. 29 C.F.R. §778.223.”
The FLSA provides that under certain circumstances an employer may indeed use some compensation already given as a credit or offset against overtime liability. See 29 U.S.C. §207(h). However, this is limited to only three categories of compensation; the DuPont situation did not fit within these categories. The primary difference was that the attempted offset time was included in calculating the worker’s regular rate of pay against the overtime liability; here “extra” compensation was not involved. Id. at §207(h).
The Third Circuit rejected the notion that the FLSA’s silence on the issue indicates permission for employers to use paid meal breaks as an overtime offset. “We agree with the reasoning of the DOL that allowing employers to then credit that compensation [included in calculating the regular rate of pay] against overtime would necessarily short change employees.”
The Third Circuit adopted the reasoning of the Ninth Circuit in Ballaris v. Wacker Siltronic Corp., 370 F.3d 901.914 (9th Cir. 2004), “it would undermine the purpose of the FLSA if an employer could use agreed-upon compensation for non-work time (or work time) as a credit so as to avoid paying compensation required by the FLSA.”
The overarching lesson is that where an employer rewards its employees with a gratuitous benefit, in the nature of a paid meal break, it will not be permitted to then transform that gratuity into an offset/credit against overtime worked.
THE PHILADELPHIA LABOR GROUP AT OFFIT KURMAN
ABOUT NEIL A. MORRIS
Neil Morris is the Chair of the Labor & Employment practice group in the Philadelphia regional office. He has passionately represented employers for the last 30 years. He specializes in the areas of labor and employment, municipal labor law, employment discrimination, defamation and business litigation. He has also served as Labor Counsel for every size business and institution on a local, regional, and national scale. He has represented more than 35 Pennsylvania Townships and Boroughs and the County of Bucks. He is often brought in to handle “crisis” situations involving employees and/or management.
ABOUT GABRIEL CELII
firstname.lastname@example.org | 267.338.1361
Mr. Celii devotes his practice to representing businesses and municipal entities navigating labor and employment disputes ranging from wage and hour litigation and work place discrimination defense to labor negotiations and the resolution of grievances. During his representation of Philadelphia-area Townships and Counties, he has successfully defended claims brought against public officials and advised municipalities on the drafting of local ordinances, such as Police Pension DROP amendments.
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