Courts Decertify Collective Actions Based On Auto-Deduct Claims, Citing Individualized Issues
As we have repeatedly discussed, use of a so-called “auto-deduct”, wherein a predetermined amount of time is automatically deducted from an employee’s hours of work to correspond to a meal period with the understanding that the employee will perform no work during that period, can give rise to individual or class claims that an employee has in fact performed some work during that period on one or more days, rendering the time compensable. This is particularly so in professions such as health care or security services, where the need to provide assistance, however fleeting, can create an instance of arguable “work” any time the employee remains on the premises. Often, employees assert such claims as putative collective action claims, alleging a systemic practice of requiring or allowing employees to perform work during these meal break periods, and then automatically deducting the time from hours of work. In a pair of new decisions, two different district judges in Pennsylvania have decertified such collective actions against Pennsylvania hospitals, finding at the close of discovery that the putative collective action plaintiffs had failed to establish similarity between their claims: i.e., they failed to establish that the employer had a “policy or practice” of allowing such work to be performed and to go uncompensated. Camesi v. Univ. of Pittsburgh Med. Ctr., 2011 U.S. Dist. LEXIS 146067 (W.D. Pa. Dec. 20, 2011); Kuznyetsov v. West Penn Allegheny Health Sys., 2011 U.S. Dist. LEXIS 146056 (W.D. Pa. Dec. 20, 2011).
In these cases, the employers were able to establish through a combination of documentary and deposition evidence that they had adequate safeguards in place to ensure FLSA compliance. These safeguards included policies and practices which require the recording of all hours of work, and a mechanism (of which the employees were duly advised) for reporting any instance of work outside the scheduled time or during a meal break, which would otherwise be automatically deducted and thus not paid. In Camesi, the court observed “Ms. Camesi received training regarding [defendant]'s meal break cancellation policies, and pursuant to those policies, she was paid for working through meal breaks at least five times . . . [she] testified that her supervisor would not have been aware of whether she had worked through unpaid meal breaks, and she never complained to any superior about working through meal breaks and not being paid.” Thus, the hospital did not “suffer or permit” Plaintiff to work through lunch without pay if and when she performed work during lunch without availing herself of the policy, as she alleged.
While these are positive decisions, they were only obtained after significant litigation. Employers must closely balance the administrative convenience attendant to such a practice with the heightened risk that an FLSA violation will occur or be alleged. Employers should adopt such policies with due care and at the least even if such policies are adopted ensure there are clearly communicated mechanisms for employees to report that they worked during such otherwise uncompensated periods.
