On May 9, the U.S. Department of Labor (“DOL”) secured its largest Fair Labor Standards Act (“FLSA”) jury verdict in history, when a jury in the Eastern District of Pennsylvania awarded $22 million to a class of approximately 7,500 workers for unpaid time spent on pre- and post-shift activities. The case is Su v. East Penn Manufacturing Co., E.D. Pa. Civil Action No. 5:18-cv-01194-GEKP.
Under the Portal-to-Portal Act amendments to the FLSA, codified at 29 U.S.C. § 254(a)(2), employers are not required to pay for time spent on preliminary or postliminary activities that occur before or after the principal activity an employee is employed to perform, except for tasks that are “integral and indispensable” to the principal activities. Ambiguity over what tasks are “integral and indispensable” has contributed to litigation in recent years regarding activities such as bag checks, other security screenings, and COVID-19 health screenings, among other allegedly compensable tasks.
The DOL sued East Penn Manufacturing (“East Penn”), a lead battery manufacturer, in 2018, alleging that the company failed to pay wages for time spent by non-exempt employees changing into uniforms, donning and doffing personal protective equipment (“PPE”), and showering after shifts. The DOL alleged these activities were integral and indispensable to the work of manufacturing batteries, which involves exposure to toxic materials including lead, cadmium, arsenic, sulfuric acid, and ammonia. East Penn...
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