DuPont's employees to proceed with class action over unpaid time getting ready for shift

By Dawn Geske | Oct 26, 2016

PHILADELPHIA – The U.S. Court of Appeals for the Third Circuit has overturned a lower court's ruling, allowing a class action lawsuit brought by employees against DuPont to proceed.

The suit, Smiley v. E.I. DuPont De Nemours & Company, examines whether paid lunch and break times can offset time spent putting uniforms on and taking them off that is unpaid and required by the employer as well as other activities that take place outside set working hours.

According to the suit, the employees have spent approximately 30 to 60 minutes getting ready for their shift each day and were not paid for this time. DuPont did pay for the time spent during lunches and breaks – approximately 1.5 hours in total, and counted this toward overtime pay. In total, the employees were paid for 12 hours a day.

DuPont maintained that the time employees spent getting ready for their shift was offset by the paid time for breaks and lunches. When brought before the U.S. District Court for the Middle District of Pennsylvania, DuPont pointed out this offset, and the court agreed with DuPont and dismissed the case.

On the appeal by the plaintiffs in the U.S. Court of Appeals for the Third Circuit, the District Court ruling was overturned on Oct. 7, finding that the FLSA had a “broad remedial purpose” and that paying for breaks was a flexibility provided to the employer under the act. In the instances that the FLSA did allow for offsets, DuPont’s argument did not fall under the requirements.

“In this case, DuPont did something that while on its face seems to make sense, the FLSA did not specifically say that it is legal and that it is permissible,” Adam R. Long, attorney at McNees Wallace & Nurick LLC, told the Pennsylvania Record.

“I think that’s why the court ended up where it did and ruled in favor of the plaintiffs.”

While the case will be remanded to the District Court for further proceedings, employers should take this as a sign that it may be necessary to review their pay policies under the FLSA, which can prove to be tricky to understand and comply with.

“The FLSA is a very difficult law in that I believe that it exists to protect employees and not employers,” said Long.

“There is a lot of technical fine points to the law in terms of how employees are paid. I don’t believe that DuPont did anything egregious or something that would be surprising or shocking.

"I think a lot of employers are in similar situations, where if someone took a very close scrutiny of their pay practice they would be able to identify certain areas that present risk under the FLSA.”

As this case shows, paid meal times and breaks may not count as offset time and could open employers up to litigation for not complying with the FLSA.

The U.S. Court of Appeals for the Third Circuit found that DuPont violated the FLSA and what it considered an offset of the time spent getting ready by employees was really out of its own generosity.

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