Back overtime pay for long-time worker? Acme could have a problem on its hands

After decades on the job, an Acme maintenance worker disagrees with a company policy and demands back overtime pay.

The managers at the local Acme plant pride themselves for several good reasons: First, the plant has remained non-union and, second, they know how to run a tight ship. A particular company policy requires plant employees to be at their work stations ready to begin laboring before the whistle sounds. Violations of this rule result in write-ups that fly into employees’ personnel files and are hauled out again only when it is time for performance and salary reviews.

Collecting two or more such violations -- even one if a worker has a history of tardiness -- results in a reduction in the standard raise the company gives at year-end. Because even a nickel decrease in hourly rate translates to a $100 annual loss for every year a worker stays with Acme, the policy is certainly effective at keeping the workforce ready to go when the whistle announces the start of the shift.

For its part, Acme does all it can to ensure compliance with its policy. The daily schedule allocates 10 minutes for normal shift changes. Each department has at least one time clock to ensure nobody in the plant is more than a one-minute walk from a place to punch in. Larger departments have two or more time clocks to eliminate long lines. A bell sounds five minutes before the start of each shift to let employees know they’d better hustle it up, punch in and get to their stations. These measures are perfectly adequate for the production departments, but cause difficulty for those in maintenance.

Everyone in the maintenance department is required to wear coveralls, safety glasses, safety shoes and other gear appropriate for their tasks. Acme provides the coveralls and subsidizes half the cost of other safety equipment. The company constructed a dressing room with lockers inside the maintenance shop, but many of the maintenance workers had problems getting from the clock to the dressing room while hurrying to get in a complete clothing change in the allotted five minutes. Write-ups and minimal raises were common in this department. Some of the crew complained about the policy, but the Acme company line is that it’s a fair policy because it’s enforced uniformly across the entire plant, including the executive offices.

More than one newly hired maintenance worker was shocked to learn of the policy. Many informed their new supervisors that, under the Fair Labor Standards Act (FLSA), workers should be using paid time to change clothes at both the start and end of their shifts. Acme managers dismissed that notion with various reasons such as, "Our policy is grandfathered in," or, "That doesn't apply in this case."

Then, seven years ago, Acme changed its policy concerning the requirement for its employees to change in the dressing room. Now, workers were told they should take a pair of clean coveralls home each day so they could come to work ready to roll. Only about half the people on each shift complied. Those holding the nastiest, dirtiest jobs and the machinists, whose clothing and shoes were permanently infused with a rich array of lubes and metal shavings, refused to enter their cars or homes wearing such filthy clothing. The occasional tardiness and write-ups continued.

Five years ago, Acme’s West Coast corporate headquarters informed all its plants that it will be implementing a new, company-wide discipline policy instead of letting each plant establish its operational rules. Under the unified plan, certain offenses, such as being tardy, were counted as incidents. A person collecting three incidents would merit a write-up, and collecting three write-ups earned a person something called a consequence, which translated, as always, to withholding part of a regularly scheduled raise. Everyone in maintenance welcomed the news. Even the worst offender was never late often enough to merit a consequence.

With this outside interference, managers at the local Acme plant feared their tight ship might spring a few leaks. In response, they took additional steps to keep the maintenance people on their collective steel toes. Within a minute of the whistle blowing, the lead maintenance man on the shift would be shouting at anyone still in the dressing room to "Get your tails out there and get to work." The technicians considered this unnecessary, annoying and degrading. But no one said anything until Long Tam retired.

Long Tam had joined the company three decades ago as a refugee who had no skills and spoke very little English. He was put in the maintenance department as a grease monkey. Every day he lubed and oiled, and swept floors. Every dirty job that came along found its way to his work schedule. He never complained, even though after years became fluent in the language of his adopted country. He also learned about the machines he was greasing and, when given a chance to help out, proved to be a natural mechanic. He worked his way into the department’s mechanical section. After a few years of diligent effort, Tam qualified as a master mechanic. For three decades, he worked in every maintenance function, finishing up as the plant's top machinist. He was popular with the employees in the operating departments and with management, too. He was the perfect employee who now was eligible for retirement.

On his last day, Acme bought donuts and soda pop and allowed Tam's shift to stop working 10 minutes early to give them time to hold a farewell party. Maintenance workers from other shifts attended; most had worked with Tam at one time or another. There were a lot of handshakes, back slapping and droning oration from the plant manager – thankfully, it was brief. The crowd called Tam to the spotlight with shouts of, "Speech! Speech!"

Tam thanked everyone for helping him throughout his many working years. He said he liked the people with whom he had worked. He liked the work. He was thankful for the opportunity he had been given to better himself and that, for the most part, he had been treated fairly. But, there was one thing that had always bothered him. Although he never mentioned it before, he had always felt that, with respect to the dressing issue, Acme treated him and his coworkers like children. Tam said that for the sake of his job, he had never spoken out. But now, he could state his belief that Acme, by issuing write-ups and condoning harassment from the lead men, had demonstrated that the company requires workers to be dressed before the whistle sounded. Therefore, he argued, Acme should pay employees for that time in accordance with the FLSA. Tam said that soon he was planning to file a complaint and attempt to recover 10 minutes overtime pay for every day he had worked at the company. During his tenure, he said, this represented 1,300 hours of time-and-a-half pay.

It’s a matter of equity, he said, and invited all Acme employees to join him, but would understand if they elected to abstain. With that, the whistle sounded, people drifted back to work and Tam picked up his box of personal belongings for the lonely walk to the parking lot for the last time.

What could Acme have done differently to prevent such a situation from happening? Does Long Tam’s argument have merit? Can the workers who came to work ready to go have the same claim as those who changed their clothing at work? Is a tight ship beyond the point of diminishing returns? Does negative reinforcement work better than positive reinforcement?

An academician says:

Many employees must wear some sort of work uniform, whether they’re police officers, nurses, FedEx delivery people, go-go dancers or football players. Most change into their uniforms at home (and sorry, but you can’t be compensated for that). The recent issue seems to focus on those workers who must change at their place of employment, as well as what kind of change is required. There is a difference between the dishwasher, who merely dons a plastic apron, and the clean room worker, who goes through an elaborate clothing ritual before entering the work area and, perhaps, is required to shower at the end of shift.

Court rulings have been conflicted on this issue, and the Supreme Court promised to straighten it all out in their fall session. Assuming they review the issue, and assuming that what they say is clear, we’ll have a better idea about whether Acme owes Tam a ton of overtime pay. I think my money would be on Tam, as the majority of court decisions seem to have gone in his direction. But, I don’t think I would try to predict what the justices will say. (By the way, do the justices get paid overtime for changing to those black robes? Oh, never mind.)

What can Acme do now, or what could they have done to avoid this situation? Well, for starters Acme’s management system is based on rules and punishments, which are backed up by more rules and punishments. When a problem arises, the solution is to add another rule and another punishment. The major difficulty with this approach is that it’s based on short-term fixes and eventually will collapse under its own weight. It invites union organizing as well as actions such as the one Tam is threatening.

My advice to Acme is to jettison the rule book and start from scratch developing an environment that will get its needs served, as well as something that the employees think is fair. They might even start with employee input. Who knows, perhaps they have some good ideas about making the process work better. Acme might end up spending a few more bucks a day (or they might not), but the new process will work better, with much less hassle, and be more cost-efficient in the long term.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu

An attorney says:

Once again, Acme has been penny wise and pound foolish. Some bean counter probably calculated how much it would cost to pay the entire maintenance department for an extra 10 minutes every day for a year and came up with the five minute bell scheme.

Tam is right, and even more ominously for Acme, the FLSA allows employees to file class action claims so all workers affected by the same pay practice, such as this one, may join in the claim.

The rule under the FLSA is a simple one. Preliminary and postliminary activities, such as donning required work garb, constitute working time if these activities are an integral part of the employee's job. On the other hand, if changing clothes is merely a convenience for the employee, time spent on this activity is not working time.

In this case, maintenance department employees were required to wear coveralls, safety glasses, safety shoes and other gear appropriate to the job. Employees couldn’t work in their street clothes, unlike the situation where a painter might desire to clothe himself in white coveralls to protect his street clothes. As a result, the time Tam and his colleagues spent putting on the required items and taking them off at the end of the day was working time, and Acme should have paid them not only for the 10 minutes they spent putting the clothes on in the morning, but for the time required to take them off in the afternoon.

One option Acme had for avoiding overtime pay obligations for the time maintenance workers spent changing clothes was to shorten the length of the work day so employees were working only eight hours, including the time they spent changing clothes.

In addition to saving a few pennies a day per employee by not paying them for the time spent changing into and out of required work clothing, Acme probably was saving money by not picking up the phone and having a 10 minute conversation with the company's labor and employment attorney. It could easily have learned the legal pay requirements years ago, had it only bothered to ask.

Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
jbadel@ebglaw.com

A corporate consultant says:

First, Acme's claim that its policy is "enforced uniformly across the entire plant" is false. Compliance with the policy by maintenance is quite a different process than compliance by other departments. Acme wasn’t being reasonable in its expectations of those maintenance workers whose labors made their shoes and clothing oily and full of debris. Allowing such workers an extra five minutes to change is reasonable and practical -- even if FLSA does require that the time to do so be paid.

Second, Acme managers have a responsibility to insist that HR check with the FLSA and secure a formal response regarding whether their policy was violating the Act. Failing to do so withheld from Acme important decision-making criteria that may have prevented this case from ever happening. If Acme's policy wasn’t in violation, the letter from FLSA could have been posted, ending the accusations. If the policy was indeed in violation of the FLSA, the policy should have been changed.

Next, it would have been easy for Acme to have predicted the impact of the policy change made by the West Coast headquarters. A review of the number of historical write-ups would have revealed that the new policy was more lenient. The verbal haranguing, therefore, seems particularly unnecessary.

However, this case really isn't about the verbal harassment; it's about whether the requirement to don protective clothing necessary to perform assigned functions should be paid time. A simple "yes" or "no" was available from the FLSA. If Acme was too arrogant to check with the FSLA, then Acme deserves to have to deal with this case.

Francie Dalton
Dalton Alliances Inc.
(410) 715-0484
fmdalton@daltonalliances.com

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