Three FLSA Overtime Decisions Decided on November 25, 2009

Here are brief summaries of three FLSA cases that were decided on November 25, 2009:

The Seventh Circuit Court of Appeals affirmed summary against an FLSA class of Wisconsin paper mill employees who brought an overtime lawsuit alleging that the employer failed to pay them for: (1) time spent putting donning and doffing on and their work clothes, safety shoes, and safety glasses before and after each workday; (2) time spent showering after each workday; and (3) time spent shaving. The court held that such activities were non-compensable preliminary and postliminary activities under the Portal to Portal Act (“PPA”). Nothing is particularly notable in this straightforward and short opinion, which does contain a concise summary of basis PPA principles. See Musch v. Domtar Indus., 2009 U.S. App. LEXIS 25809 (7th Cir. Nov. 25, 2009).

A Southern District of Texas judge refused decertify an FLSA collective action, wherein the employees alleged that the company failed to pay them regular and overtime pay for time spent preparing for ant taking “skills-assessment tests.” The courts also denied most aspects of the company’s summary judgment motion. The opinion contains a good discussion of when employee training is compensable under 29 C.F.R. § 785.27 and the pertinent case law. There’s also a real good recital of the Fifth Circuit decertification standards, as the judge rejects many of the defense-bar’s standard decertification arguments and tactics, such as emphasizing “individualized” damages theories (even though damages issues are not supposed to be before the court at the decertification stage). This opinion is worth reading. See Maynor v. Dow Chemical Co., 2009 U.S. Dist. LEXIS 110031Â Â (S.D. Tx. Nov. 25, 2009).

AÂ Middle District of Florida judge refused to conditionally certify a class of call center employees who seek overtime pay. See Tussing v. Quality Res., Inc., 2009 U.S. Dist. LEXIS 110190 (M.D. Fla. Nov. 25, 2009). The judge emphasized that the affidavits submitted by the plaintiffs were “woefully insufficient” and was critical of the plaintiffs’ tactic of trying to certify in the same case employees that were classified as both exempt and non-exempt from overtime.

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