The Third Circuit Court of Appeals recently affirmed a jury award of $22.25 million in back pay to 11,780 uniformed employees who worked for a manufacturing company. The United States Department of Labor had claimed that the manufacturer failed to adequately compensate these employees for changing and showering time.
Experts estimated that workers averaged over 15 minutes dressing pre-shift and 11 minutes of undressing and showering, which was more time than the 5-minute grace period they were paid for. Both sides agreed that changing and showering were "integral and indispensable to the workers' principal activities." While the employer argued that the workers were dragging their feet in their donning and doffing activities, the Third Circuit noted, "if a worker lollygags, the employer's recourse is to discipline or terminate the employee — not to withhold compensation."
I have been asked many times about what to do when an employee punches in early or continuously fails to clock in. My answer is always to counsel them and then terminate them if the problem continues, but to never withhold pay if they actually worked the hours. Accurate timekeeping for non-exempt employees is the most important tenet of the Fair Labor Standards Act.
Every employer should have the employee accurately record their time, and if there is an issue with that, then the employee should be properly counseled. More importantly, if you have questions as to whether certain employee activities should be considered work time, then get employment advice.
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