Karen Kidd May 5, 2016, 3:47pm


WASHINGTON – Pennsylvania employers need to be wary of their procedures in light of a U.S. Supreme Court decision earlier this month not to review an appeal in a $187.6 million Wal-Mart class action case, say two attorneys who've blogged about the case.

"Employers should regularly review and revamp their timekeeping policies, because of the constant changes in wage/hour law," Barbara Hoey and James Saylor, attorneys with Kelley Drye & Warren in New York City, said in a joint email to the Pennsylvania Record

Hoey and Saylor warned employers to track every bit of an employee's time during the workday.

"Look for those hidden pockets of the workday which for some reason may not be captured, such as meal and rest breaks, work time at the start or end of the workday, time spent opening or closing, time spent cleaning up after clocking out, travel time between jobs or assignments, and training time," they said.

"The list can go on and on. If that time is not paid, you need to make sure it is not compensable time. Even if you do not think the time is compensable, you may want to informally keep track of it – in case you are sued later."

The U.S. Supreme Court on April 4 denied Wal-Mart's petition for certiorari, in which the national retailer hoped to overturn a lower court’s decision in the wage-and-hour case. The Supreme Court's decision lets stand a December 2014 ruling by the Pennsylvania Supreme Court that affirmed an almost $188 million judgment against the national retailer.

The 187,979 class member employees in the case alleged they'd been forced to work through meal and rest breaks - breaks mandated by Pennsylvania law and Wal-Mart's own policy. The U.S. Supreme Court issued its denial to Wal-Mart only a few weeks after it handed down its decision in Tyson Food v. Bouaphakeo. 

That ruling affirmed a class action award for Iowa Tyson Foods workers who alleged they were underpaid. Just prior to the Tyson decision, legal experts speculated a victory for workers in the case could lead to a number of changes, including class action certification.

The two cases together are being cited by legal observers as pivotal recent cases in which the high court has sided with workers and workers' rights, which is all the more reason for employers to work with their employees to be sure to not run afoul of wage and hour disputes, Hoey and Saylor said.

"The more you can get employees to agree that their hours are accurate, the better," the two said.

"Make them sign off, on paper or electronically, at the start and end of the work shift and affirmatively indicate that they have been paid properly and that all of their hours are accurate. Create a record that meal breaks, especially if unpaid, were taken."

It also is imperative that employers keep employees informed, Hoey and Saylor said.

"Post notices everywhere, on the walls and on your company websites, and remind employees two, three and four different ways that it is their job to tell their manager when they work extra time or miss a break," the two said.

"Make it easy for employees to report extra hours, and again remind them of those procedures over and over. Get employees to sign off that they have received these reminders."

Employers also should see the Wal-Mart case as an abject lesson of the ever-changing climate of wage-and-hour law, Hoey and Saylor said.

 "At the time, the petition was made on strong grounds," the two said. "Wal-Mart suffered from unfortunate timing with the Tyson Foods decision, although if the Braun case had been reviewed first, the same result would have been likely."

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