Time Is On My Side...Yes It Is

Mar 23, 2016

If you're an employer, keep the chorus of this Rolling Stones tune in your head. Time is on my side. Yes it is. Because when it comes to time records, they can be your ally if you are sued under the Fair Labor Standards Act.

Yesterday, the U.S. Supreme Court upheld a $2.9 million jury verdict against Tyson Foods in an FLSA collective action for failure to pay overtime. At issue in the litigation was whether Tyson Foods employees should be compensated for the time spent putting on their protective gear before hitting the floor and removing it at the end of a shift. These types of claims are known colloquially as "donning and doffing" cases. As one might expect, Tyson's experts claimed that the donning and doffing process could be done quickly while the Plaintiffs argued that it took a much longer amount of time. Because Tyson did not believe that the Plaintiffs needed to be compensated for the time spent donning and doffing their protective gear, employees did not clock in until after putting on the gear and there was not a mechanism to track how long it actually took each employee to don and doff. As such, an average time was arrived at by the Plaintiffs' expert witnesses and relied on by the jury in reaching it's conclusion. (Even the Plaintiffs' experts acknowledged that there were class members who may not have worked any overtime that might receive compensation under the formula.)

Here, recording and tracking the time spent by employees donning and doffing gear may have resulted in a lower verdict in the case - or perhaps - no case at all. For any employer looking to take a conservative and practical approach, keep track of all that time and those records will be on your side.

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