Business owners face many situations where laws don’t appear crystal clear or do not cover particular circumstances. In these cases, lacking the advice of an attorney or HR specialist, they make judgment calls that may get them into trouble. That happened to a major corporation, whose personnel assumed paid meal breaks could offset unpaid pre-shift and post-shift work.
Although their logic may have seemed reasonable, the approach was not covered by the Fair Labor Standards Act (FLSA). DuPont employees filed suit, and their action is a prime example of why the safest approach is to conform to the rules established in the FLSA.
In Smiley v. E.I. DuPont De Nemours & Company, the plaintiffs filed a FLSA collective action seeking compensation for 30-60 minutes of “unpaid time” spent on varied pre- and post-shift activities, including putting on and taking off uniforms and safety gear. The plaintiffs alleged the meal time could not offset unpaid work time.
Company Personnel Make an Assumption
DuPont paid the workers for 12-hour shifts, which included (per standard industry practice) three 30-minute breaks. Company accountants included the paid break time in total hours worked and in calculations of the regular rate of pay. Because, per DuPont, the paid break time always exceeded the amount of unpaid pre- and post-shift time, company representatives considered it to be a reasonable offset for the unpaid work.
The Courts Can’t Agree
Because the FLSA does not specifically prohibit the practice of offsetting unpaid work with paid breaks, a District Court sided with DuPont and granted it a summary judgment. On appeal, however, the U.S. Third Circuit Court rejected the offset argument.
The Court had invited the DOL to weigh in on the matter and, upon reading the agency’s brief, it reversed the lower court’s ruling, siding with the plaintiffs. The Circuit Court acknowledged that the FLSA was silent on the issue, but argued that the statute “implicitly” forbade the practice.
This is a very interesting case, because the appeals court’s decision conflicts with at least two earlier, similar decisions regarding non-work time. The Supreme Court has been asked to make a final determination to “restore uniformity to this important area of federal law.”
The Cato Institute, a policy thinktank, sides with DuPont, asserting that “where Congress has not addressed a certain practice, [an] agency has no authority to regulate, and the practice is presumptively legal.” Cato has now filed its own brief supporting DuPont’s petition.
If it accepts the case, the Supreme Court may be deciding not only the DuPont case but also other issues of concern for employers:
- How much weight the opinions of federal agencies should have in employment law cases.
- Whether only activities prohibited in the FLSA can be violations or if any practice not expressly allowed can constitute a violation under the right circumstances.