In most wage and hour cases, each workweek gives rise to a separate claim, at least for statute of limitations purposes. Thus, an employee seeking payment for alleged off-the-clock work or an independent contractor claiming misclassification and entitlement to overtime ordinarily may seek back wages and related recovery only for work performed within a set amount of time—usually two to six years preceding the filing of the complaint, depending on the jurisdiction—preceding the filing of the complaint. …
Chipotle recently obtained decertification of a conditionally certified collective action of salaried “apprentices” under Section 216(b) of the Fair Labor Standards Act (“FLSA”) in Scott et al. v. Chipotle Mexican Grill, Inc. et al., Case No. 12-CV-8333 (S.D.N.Y. Mar. 29, 2017), a case in New York federal court involving claims of unpaid overtime based on misclassification. In that case, Chipotle effectively leveraged disparities between the job duties and activities of putative class and collective action members across six states to show that they were not similarly situated.
Chipotle could not repeat its success in a more recent FLSA collective action brought by plaintiff employees and former employees filed in Minnesota federal court. In Harris et al. v. Chipotle Mexican Grill, Inc., Case No. 13-CV-1719 (D. Minn. June 12, 2017), hourly employees who worked in Chipotle’s Crystal, Minnesota restaurant asserted claims for unpaid wages and overtime under the FLSA and Minnesota law. The Minnesota federal court found that the named and opt-in plaintiffs were similarly situated for purposes of pursing their claims in an FLSA collective action, and denied Chipotle’s motion to decertify.
In Harris, five named plaintiffs holding various hourly positions – including crew member, kitchen manager and service manager – claimed that Chipotle had a company-wide unwritten policy of requiring hourly employees to work “off the clock” without pay. Specifically, the plaintiffs alleged that after the restaurant stopped serving the public and the closing shift ended, employees were required to clock out and continue working until the restaurant was fully cleaned and all work was completed. Chipotle’s timekeeping system also reset at a certain time each night, automatically clocking out any employee who had not already done so. These unwritten policies, the plaintiffs alleged, resulted in hours of unpaid work time each week.
Early on in the Harris litigation, the court conditionally certified as a collective employees at Chipotle’s Crystal, Minnesota restaurant who either (1) were automatically punched off the clock by the timekeeping system and continued to work, or (2) otherwise worked “off the clock” during closing shifts, resulting in non-payment of regular wages or overtime wages. Twenty-three opt-in plaintiffs subsequently filed a consent to join the collective action.
Chipotle argued in its recent motion to decertify that the only “superficial common thread” binding the putative collective action members was the location of the restaurant at which they worked, and that the alleged unpaid after-hours work stemmed from scattered and unrelated causes, rather than a common policy (i.e., managerial directive versus automatic clock-out, among other reasons). Disagreeing with Chipotle’s argument, the court pointed out that the FLSA collective it had conditionally certified encompassed both types of off-the-clock work, and noted that the collective was “limited to a single store, a single shift, and to a relatively small number of plaintiffs who worked in generally three positions (crew member, kitchen manager, and service manager), for a limited number of general managers and apprentice managers.” The court also rejected Chipotle’s contention that the alleged FLSA violations were attributable to different types of work for varying amounts of time. To the contrary, the court held, the collective action members at issue performed the same duties in one restaurant: cleaning, counting money, prepping food, locking up, and attending meetings. Viewing the facts in this context, the court held that decertification was not appropriate.
The court further found that Chipotle’s assertion of individualized defenses against certain named and opt-in plaintiffs similarly did not warrant decertification, including the following: (1) lack of notice to Chipotle of any work performed after an automatic clock out due to the timekeeping system’s nightly reset; (2) lack of evidence that managers issued directives to work off-the-clock; (3) certain types of activities allegedly performed by the plaintiffs did not constitute compensable work; (4) work allegedly performed off-the-clock was de minimis and therefore not compensable; (5) employees failed to utilize Chipotle’s procedures for accurately recording hours or remedying errors in recorded work time; and (6) criminal history of certain plaintiffs affecting their credibility. The court held that each of these defenses went to the merits of the plaintiffs’ claims and did not weigh in favor of decertification.
Based on the lack of discernible differences among the named and opt-in plaintiffs, the court found that the issues in the case were appropriate for classwide resolution and that a collective action would serve the interests of judicial economy and more efficiently resolve the plaintiffs’ claims.
* * *
The Harris decision highlights the types of issues owners/operators in the hospitality industry face when defending against collective actions under the FLSA, even those in which the universe of putative plaintiffs may be small or limited to one or two locations. Minor nuances in the nature of work performed, variety in the reason for the work, and individualized defenses that go to the merits of the claims at issue may not be sufficient to decertify a collective action. In seeking to obtain decertification, owners/operators should emphasize as many disparities as possible in the policies and practices governing work time and timekeeping that may result in differences that would prevent a putative collective group of employees from being considered a similarly situated class.
Whether time spent in training is compensable time under the Fair Labor Standards Act (“FLSA”) is an issue that the courts have addressed in a variety of contexts. A new Fourth Circuit decision – Harbourt v. PPE Casino Resorts Maryland, LLC – addressed that issue in the context of pre-hire training provided to some casino workers in Maryland and concluded that the casino workers alleged sufficient facts to proceed with their claims that they should have been paid for pre-hire training.
After Maryland legalized full-fledged casino gambling in November 2012, the state had a supply and demand problem. Casinos had six months to hire workforces before the law went into effect, but they found that there were not enough trained dealers to staff the table games. Maryland Live!’s solution was to create a “dealer school.”
Needing approximately 830 dealers to work its 150 table games, the casino vetted more than 10,000 applicants to participate in a free, twelve-week instructional program to equip them with the skills needed to work as dealers at Maryland Live! The trainees attended 20 hours of instruction per week, receiving training in techniques that the trainees contend were specific to Maryland Live!’s operations
The trainees were not paid for attending the program, and, after completing much of the school, some of the trainees filed a putative class and collective action lawsuit alleging that they should have been compensated as employees under the Fair Labor Standards Act (“FLSA”) and Maryland state law for time spent attending the dealer school.
Maryland Live! moved to dismiss the lawsuit, which was granted by the District of Maryland. The Fourth Circuit reversed, allowing the lawsuit to proceed. In reaching its decision, the Fourth Circuit applied the “primary beneficiary” test to determine whether the attendees were “trainees” who were not eligible for compensation, or “employees” who were eligible. In so doing, the Fourth Circuit reaffirmed prior precedent and joined the Second and Eleventh Circuits in rejecting the application of the U.S. Department of Labor’s six-factor test to determine whether an individual is a trainee or employee.
The court concluded that the plaintiffs had alleged sufficient facts to state a claim that the casino was the primary beneficiary of the school such that the attendees would be “employees” under the FLSA.
In reaching the decision to permit the lawsuit to proceed, the court rejected the casino’s argument that it could not be the primary beneficiary of the school because the trainees did not interact with customers and the casino did not receive any monetary benefit from their training. Rather, the plaintiffs sufficiently alleged that the casino received an immediate benefit — “an entire workforce of over 800 dealers trained to operate table games to the casino’s specification at the very moment the table games became legal.”
Because the Fourth Circuit addressed this issue in the context of a motion to dismiss, it only considered the sufficiency of the plaintiffs’ allegations. Maryland Live! will have an opportunity to rebut the plaintiffs’ allegations as the case proceeds.
While Maryland Live! may still establish that the trainees, and not the casino, were the primary beneficiaries of its dealer school such that their training time is not compensable, the decision to permit the lawsuit to proceed highlights the need for employers to review their own policies and practices relating to training. Employers that have training programs that do not pay attendees for their time should review those programs closely to determine whether they are for the primary benefit of the attendees and, if not, consider either paying the attendees for their attendance or restructuring them so that they primarily benefit the attendees, not the employer.
Among other things, employers who wish to implement or continue unpaid training programs should:
- Ensure that attendees do not expect to be paid for the training;
- Provide skills that are transferrable to other potential employers, rather than skills that are specific to the employer’s workplace;
- To the extent possible, provide the training in an educational environment rather than the employer’s workplace.
- In the context of internships, attempt to tie the training to a formal education program for the student or intern.
- Not guarantee jobs to the attendees at the end of the training program; and
- Not require the attendees to perform work that will displace current workers.
Virtually all hospitality employers are aware that pursuant to the Fair Labor Standards Act (“FLSA”), they are required to compensate employees for all hours worked. What is not as clear, however, is whether the time an employee spends at training programs, lectures, meetings, and other similar activities should be considered hours worked. As a result, our clients in the hospitality industry often ask whether they are required to compensate employees for time spent in such training activities.
The short answer to this question is that an employee’s time spent in training sessions should be considered “working time” and thus is compensable, unless the following four factors are met:
a) Attendance is outside of the employee’s regular working hours;
b) Attendance is voluntary;
c) The training is not directly related to the employee’s job; and
d) The employee does not perform any productive work during the training.
This “four-factor test,” however, is not as straightforward as it may seem. Indeed, as demonstrated by the below “Common Employer Inquiries and Responses,” these factors contain many nuances that may make it difficult for an employer to easily determine whether training time should be compensable.
Common Employer Inquiries and Responses
i. How should an employer determine whether attendance at a training session is outside “regular working hours?”
By default, some employers interpret the term “regular working hours” to mean the typical, standard hours of 9:00 a.m. to 5:00 p.m. As a result, these employers automatically compensate all employees for any training that takes place during these hours, even for those who do not work this standard schedule. Such an interpretation, however, may result in significant overpayments to your employees. The term “regular working hours” refers to the particular shift worked by an individual employee. Thus, if a waitress regularly works a shift from 2:00 p.m. to 10:00 p.m., the restaurant employing her would not be required to compensate her for attending a training session from 9:00 a.m. to 11:00 a.m. (assuming all three other factors were satisfied), since the training session would be outside of her specific regular working hours.
ii. How can an employer ensure that attendance will be considered “voluntary”?
The Department of Labor (“DOL”) classifies training as “voluntary” if (1) the employer does not require the employee to attend the training; and (2) the employee is not led to believe that her employment would be adversely affected if she does not attend the training. If an employer takes an adverse action against the employee as a result of her failure to attend the training, attendance clearly is not voluntary and the employee must be compensated. Therefore, an employer should explicitly convey to its employees that any voluntary training is not required and ensure that its supervisors and managers do not give any indication that non-attendance will result in an adverse employment action against the non-attending employee.
iii. When is a training considered “directly related to” an employee’s job?
Of all the factors set forth in the four-factor test, the question of whether training is directly related to an employee’s job generates the most employer uncertainty. In short, training is directly related to an employee’s job if it is designed to make her more effective in her position or to teach her something new she needs to know to perform her current job duties. Conversely, training is not directly related to an employee’s job when its primary focus is to prepare an employee for advancement or train her for another position, even if it results in incidental improvement to an employee’s ability to perform her regular duties. Furthermore, training is not considered to be directly related to an employee’s job when an employer’s non-mandatory training program is of general applicability and corresponds to courses offered by independent, bona fide institutions of learning.
Questions often arise as to whether non-mandatory training offered by the employer to facilitate attainment or renewal of a license, permit or certification is directly related to an employee’s job. For example, a hotel or spa may offer non-mandatory training sessions to its masseuses so that they can obtain their required licensure as massage therapists. Although the training would arguably make an employee more effective in her position as a masseuse, the program is of general applicability and corresponds to courses offered by other entities in accordance with the requirements of the state licensing division. Moreover, while the employee’s receipt of the license is mandatory, the employer’s training program is non-mandatory, as it is simply one means of achieving the required documentation. Consequently, as long as the training offered by the employer corresponds to the requirements outlined by the state licensing division, an employee’s attendance at the employer-sponsored program would not be compensable.
iv. What type of work performed during training constitutes “productive work”?
The DOL defines “productive work” as any work that an employer is able to use for business purposes. Therefore, so long as an employer does not permit an employee to actually perform work that could benefit it during the training session (as opposed to simply learning to perform such work), an employee would not be considered to have performed productive work during the training.
Although the FLSA creates a presumption in favor of compensation for training sessions, there are many instances in which an employer in the hospitality industry is not required to pay employees for such time. As a result, hospitality employers should consistently evaluate their policies and practices regarding their training sessions to ensure they are not compensating employees for time when there is no obligation to do so.