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In virtually every case, so-called off-the-clock disputes come down to the situations of individuals rather than classwide conduct. An employee may claim that a night supervisor told them not to record time after midnight. An individual employee may construe criticism that they are working too slowly as an admonition not to record time. Employees may find it too inconvenient to put in for breaks or meal periods they have missed for worktime emergencies. Given that the employees must prove not only that they worked off the clock but also that the employer was aware of it, almost by definition these claims should devolve into individual inquiries. For this reason, while such claims are increasingly common, careful review often reveals that they should not be maintained on a class or collective basis.



A pair of cases in the healthcare industry (a common target of such claims) illustrate this point. In the first case, <a href="https://employmentclassactionreport.bakerhostetlerblogs.com/wp-content/uploads/sites/8/2018/04/https-ecf-flmd-uscourts-gov-doc1-047118033740.pdf">Poggi v. Humana at Home 1, Inc.</a>, Case No. 8:17-cv-433-T-24 MAP (M.D. Fla. 2017), the employer was a health insurer that provided support to certain chronically ill patients through a group of employees with various titles such as “healthcare coordinator.” The plaintiff, who held one such position, sought to bring a claim under the FLSA for off-the-clock work. The crux of his claim was that the company had implemented a series of policies designed to increase employee efficiency, including tracking their productivity on a regular basis and setting standards. He contended that the policies simultaneously incentivized employees to work off the clock to meet the standards and provided a record of when they were logged into the company’s electronic systems that would show that they were “working” for more hours than they were paid for. Eight employees opted in, and the plaintiffs sought conditional certification using a somewhat cumbersome class definition that tried to incorporate these systems and various violations. The district court expressed a number of concerns regarding the plaintiffs’ submissions, but ultimately denied certification because the case would inevitably come down to individual issues. The most glaring of these was the obvious fact that an employee could be logged into the system without actually working, and the finder of fact would need to go employee by employee to determine what time was working time and what time was not.

The second case concerned a large swath of hourly hospital workers. In Miller v. Thedacare, Inc., Case No. 15-C-506 (E.D. Wis. Jan. 17, 2018), the plaintiffs sought to represent a class of approximately 2,400 hourly workers at three different hospitals. The employer provided a 30-minute lunch period and “auto-deducted” the time, with the ability to submit for the time if it was not taken. Auto-deduct policies, while lawful, are a common feature in these cases. In this instance, the court conditionally certified the case, despite upholding the legality of the policy, due to allegations that the employer “strongly” encouraged employees to work through their unpaid meal periods but not submit the time. Interestingly, only 165 employees opted in, around 7 percent, a very low showing.

Emboldened despite the low opt-in rate, the plaintiffs moved for Rule 23 certification under state law, and the employer moved to decertify the FLSA class. On closer examination, the district court denied the plaintiffs’ Rule 23 motion and granted the employer’s motion to decertify. The court recognized the possibility that individual employees did work off the clock, but found that sorting out when and how that occurred and the employer’s knowledge and role would turn on “the myriad of factors each employee faced over the period of time covered by this lawsuit.” These included not only individual supervisors and roles but also the intent of the employees themselves and the workload that varied from day to day. Importantly, while the plaintiffs had alleged the existence of a policy by upper management to encourage off-the-clock work, in point of fact their claim relied on snippets of comments from senior managers, lawful policies and rumor, none of which the court found to be sufficient. The court ultimately found that individualized determinations would dominate even questions about individual meal periods, and thus neither class nor collective treatment was appropriate.

Incidentally, the court in Miller ultimately reached the right conclusion, but these are issues that should have been apparent early on. While the opt-in rate was low, it might have made sense to put the plaintiffs more to the proof on their claim of upper management promotion of off-the-clock work before all the parties had to go through conditional certification and the likely after-effects once the case was decertified. The key takeaway is that both courts eventually recognized what should be apparent in most of these cases – that barring the rare instance in which there is admissible evidence of an actual policy of the defendant not to pay for time worked, the action should not be permitted to proceed on a class basis.

The bottom line: Off-the-clock cases almost by definition rely on actions of individuals that make poor fodder for class or collective action treatment, but the employer may have to go through conditional certification to prove it.

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