Back in December, we wrote about a case involving the Chicago Police Department, in which officers alleged that they were owed additional overtime for time spent responding to calls and messages on their Blackberry devices, but which they failed to report in accordance with Police Department procedures. The court ruled for the City, holding that while the officers may have worked hours for which they weren't paid, the City was not liable because it did not have actual or constructive knowledge of the uncompensated work. It was a clear win for the City and for employers in general. But before anyone gets carried away, they should read a subsequent decision from another judge in the Northern District of Illinois that illustrates the limits of the idea that employers are not on the hook for work they don't know about.
In Caggiano v. Illinois Department of Corrections (.pdf), Michael Caggiano, a former DOC employee, sued the Department alleging that the DOC violated the FMLA by firing him due to absences that he claimed should have been protected FMLA leave. The DOC asked the court to dismiss the case on summary judgment without a trial, but the court rejected that motion, holding that Caggiano presented enough evidence to take his claims to a jury. Our colleague Jeff Nowak previously wrote about Caggiano in our sister blog, FMLA Insights, where he focused on one aspect of the court's ruling - specifically, the DOC's failure to designate a "rolling" 12-month period as the basis for calculating FMLA leave. Here, we'll focus on another argument advanced by the DOC: that Caggiano wasn't eligible for FMLA leave for at least part of the period in dispute because he had not worked enough hours.
Why are we writing about an FMLA case in our wage & hour blog?
Employees are eligible for FMLA leave only if they have worked at least 1250 hours during the 12 months preceding the start of an FMLA leave. In support of its motion for summary judgment, the DOC argued that Caggiano worked seven and a half hour shifts, and that according to his time records he had not worked enough hours to qualify for FMLA leave during at least part of the period in dispute in the case. Caggiano argued that in fact he had worked enough hours to be eligible for FMLA leave, because he never took the 1/2 hour lunch break that was provided for in his schedule. To the contrary, he claimed that because his shift was understaffed, he was not able to be relieved at lunch, and instead ate on duty in the dayroom with inmates.
This difference is where the FLSA comes into play. According to the regulations governing the FMLA, the 1250 hour requirement is measured in the same way as "hours worked" for purposes of the FLSA. Consequently, an employee can be entitled to FMLA leave based not just on hours recorded or paid, but also on any additional "off the clock" work that the employee might perform during the 12-month measuring period.
Ignorance is not bliss for employers.
For its part, the DOC argued that even if Caggiano did work through his lunch, DOC management was never aware of it, and that the time therefore should not count as "hours worked" for purposes of either the FLSA or FMLA. The DOC presented evidence including an affidavit from Caggiano's supervisor asserting that he never observed, ordered or required Caggiano to work through his lunch break, and another affidavit from the facility's Superintendent asserting that he would have approved an overtime request if Caggiano reported that he had worked thorugh his lunch. Indeed, Caggiano's time sheets showed that Caggiano never claimed overtime for working through lunch.
While the court acknowledged that Caggiano's testimony that he worked through lunch was "self-serving" and was contradicted by the DOC's evidence, it nevertheless held that the testimony was enough to create a factual issue that had to be decided by a jury at trial instead of by the court on the DOC's motion for summary judgment. Further, the court rejected the DOC's argument that the Caggiano's claim should be rejected due to a lack of evidence that the DOC actually knew Caggiano was working through his lunch, holding that the DOC bore the burden of establishing that it took adequate steps to prevent any unauthorized work:
Defendant also argues that it should prevail because Plaintiff did not "present evidence that he had personal knowledge that any of his IDOC supervisors or other personnel knew tht he worked through his 30-minute lunch break." Defendant does not cite any support for this requirement, and the FLSA regulations impose a duty on management only. 29 C.F.R. § 785.13 (placing an affirmative duty on employers to oversee employees, and not rely on promulgated rule only). At this time, it is not clear whether plaintiff worked through his lunch breaks, but it is clear that defendant had a duty to ensure that plaintiff was not working through his breaks if it did not want him to. Whether defendant met this duty remains a genuine issue of material fact.
What should employers do?
This case doesn't break any particularly new ground, but it does illustrate a long-running theme for employers dealing with "off the clock" claims. When employees claim that they are working off the clock, the burden of proof is effectively on the employer to show that this is not the case. Caggiano was decided on summary judgment, so it remains to be decided whether Caggiano did or did not work the extra hours that he claimed. But the Court's ruling makes it clear that employers face a steep uphill battle in these cases, particularly at the summary judgment stage.
So what can employers do to minimize their risk?
- Clear policies and sound time recording procedures are a must. Clearly instruct employees not to work through lunch and to record all of their work hours. Conduct periodic reviews to ensure that they actually follow instructions.
- Minimize opportunities for off the clock work whenever possible. If you don't want employees answering e-mail after hours, don't give them remote access to their work email. If you don't want them working through lunch, don't allow them to eat lunch in working areas where they are likely to be interrupted.
- Avoid automatically deducting time from an employee's workday for unpaid lunches or other breaks. Instead, make employees affirmatively record their breaks by punching out when they go on break, and back in before resuming any work. Or, if that is not feasible, at least make sure that employees are given clear instruction on how to report any extra time in the event that their lunch period is interrupted, and again make sure that employees actually report their time when interruptions do occur.
Measures like these may not have been enough to swing the pendulum on summary judgment for the DOC, but they would certainly strengthen an employer's case at trial.