Employer Owes Pay for Actual Changing, Showering Time, Not Its ‘Reasonable’ Estimate

A Pennsylvania battery firm has been found responsible for paying $22.25 million in backpay to workers to cover the actual time they spent changing and showering for their jobs working with hazardous materials.

Their employer, East Penn Manufacturing, had argued that it did enough by paying employees for two 10-minute “grace periods” before and after the workday started, a length of time it believed was reasonable. The company maintained that any difference between the time it paid and the actual time it took employees to change and shower was trivial.

But the Third Circuit Court of Appeals has upheld a federal district court ruling that under the Fair Labor Standards Act (FSLA), an employer must pay for the actual time spent changing and showering, not just what it considers a reasonable time. The courts agreed that the employer has the burden of proving that any time it did not pay hourly employees is trivial.

East Penn Manufacturing said it feared that focusing on actual time would reward employees for dragging their feet or tending to personal matters.

East Penn makes and recycles lead-acid batteries. Because the work involves lead and other hazards, some workers must wear uniforms and shower after their shifts. The uniform is a T-shirt and work pants. Many workers must also wear protective equipment, like safety glasses and shoes; some must use hard hats and respirators too.

Until 2003, East Penn did not pay hourly workers for time they spent changing or showering. That year, it started giving workers a five-minute grace period at the start of each shift to dress and get to their workstations, plus five minutes at the end to undress and shower. In 2016, it doubled the post-shift grace period to 10 minutes. But it did not record how much time workers actually spent changing and showering.

The government sued East Penn under the FSLA for failing to pay employees for all time spent changing and showering. As part of the suit, the government presented expert testimony that workers averaged 15.6 minutes dressing pre-shift and 11 minutes undressing and showering—more time than they were paid for.

Both sides agreed that changing and showering are “integral and indispensable” to the workers’ principal activities.

The district court granted summary judgment for the government based on that issue and told East Penn that it had to pay employees for that time. At trial, the jury found that East Penn owed 11,780 hourly uniformed workers roughly $22.25 million in backpay. The district court declined to award liquidated damages, finding that East Penn had tailored its policies to what it believed was right based on advice from an employment attorney.

East Penn appealed the summary judgment, and the government cross-appealed the denial of liquidated damages.

The appeals court noted that while the FSLA says nothing about excluding trivial time, some courts have recognized a de minimis exception The line between negligible and material time is hazy but employers must pay workers for “giving up a substantial measure of their time and effort,” but not for “only a few seconds or minutes of work beyond the scheduled working hours.”

The Third Circuit said that the absence of a clear statutory directive, the burden of proving the de minimis defense belongs on the employer. In so finding, it joined the Seventh, Ninth, and Tenth Circuits in placing the burden of proof on the employer.

The appeals court said the actual text of the FSLA shows that correct measure is actual time, calling requirement that “employers pay employees for all hours worked” a “bedrock” principle of the law.

“The wage-and-hour provisions track the hours that employees work; they say nothing about a reasonableness limit. If reasonable time sufficed, employers could instead estimate hours, but estimating violates the recordkeeping requirement. If a worker lollygags, the employer’s recourse is to discipline or terminate the employee—not to withhold compensation,:” the court wrote.

The Third Circuit thus joined the Sixth Circuit in basing liability on the actual time that workers spend,

Regarding the government’s appeal of the denial of liquidated damages, the Third Circuit said that the district court correctly concluded that East Penn had reasonable legal grounds to think that its employment practices were lawful. The court further noted that before this opinion, the Third Circuit had no controlling precedent on whether employers had to pay for actual or reasonable time. East Penn asked legal counsel how to follow the law, and counsel advised East Penn that it might be able to disregard pre-shift work as de minimis. Even though that advice turned out to be mistaken, following it was reasonable in the view of the courts so the district court properly exercised its discretion not to award liquidated damages.

The Court of Appeals for the Third Circuit serves the areas of Pennsylvania, New Jersey, Delaware, and the Virgin Islands.