“If at first you don’t succeed, try, try, again,” or so the adage goes. A recent case suggests that may not always be the right strategy or, more apropos to this blog, that off-the-clock cases make poor fodder for class action claims.
In Hernandez v. Ashley Furniture Industries, Inc., Civil Action No. 10-5459 (E.D. Pa. May 22, 2013), the plaintiffs brought suit under the Pennsylvania wage and hour statutes, as well as for unjust enrichment and breach of contract, for alleged unpaid wages, allegedly on behalf of 5,700 employees. The crux of their claim was that the employer encouraged them to shorten their unpaid lunch periods or to work extra time before or after their shifts without pay.
One interesting feature of the case was the technology the company used to enforce the fact that employees were not expected to work during their unpaid 30-minute meal period, for which there was an automatic deduction. The employer’s manufacturing equipment actually shut down during meal periods to prevent employees from performing work during their meal time. In practice, however, supervisors could, and apparently at times did, override the shutdown so that employees could work. The employer’s time-keeping systems also recorded the times that the employees actually punched into work and when they actually began working on a production line.
The plaintiffs moved for class certification, but the district court initially denied their motion for lack of evidence, permitting them, instead, to obtain expert testimony to support their claims. They did so, and their expert testified as to various damages scenarios that depended upon the specific conclusions of the finder of fact.
That qualification proved, at least in part, to be fatal to the plaintiffs’ second motion for class certification. The court examined the named plaintiffs’ claims, and found that their off-the-clock allegations varied by supervisor and even by the production line on a particular day. Further, the employees worked under different schemes, whether purely hourly or on an incentive plan. The court refused to extrapolate claims from “representative” plaintiffs, consistent with the prohibition on “Trial by Formula” set forth in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ____ (2011). Thus, the court ultimately refused to certify again based on any of the state law claims the plaintiffs had asserted.
The Hernandez case underscores the need for a uniform practice in off-the-clock cases, a requirement that will often prove elusive. Off-the-clock cases, by their very nature, generally involve individual departures from the employer’s lawful uniform policies, rather than a uniform policy that violates applicable law. From the employer’s standpoint, however, it also demonstrates that the human element can create the risk of off-the-clock claims even when it creates systems to prevent work from being performed during unpaid time.
The Bottom Line: Off-the-clock cases remain tough cases to certify because of the inherent need to examine the situations of each individual plaintiff.