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A Successful Off-the-Clock Work Lawsuit Needs Reasonable Evidence

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St. Paul, MNThere is little doubt that off the clock work keeps occurring as employers continue in their quest to squeeze as much work and as many hours out of their employees as possible without necessarily having to pay for it. The practice often results in a battle between employers continually trying to push the limits versus employees having drawn a line in the sand with a position that suggests, in sum, “if it’s a requirement of the job, you’re going to pay for it.”

To that end, an unpaid wages claim is generally successful for the plaintiff, but not always. That’s because in some cases, an unpaid wages claim within a donning and doffing lawsuit can be hard to prove.

Case in point is an Unpaid Wages lawsuit against Clear Wireless LLC that was put forward as a proposed class action by employees who sold mobile phones and related accessories from kiosks in shopping malls.

According to Business Management Daily (4/21/16) and court documents, the plaintiffs claim they were forced to work off the clock without pay - a common refrain amongst plaintiffs in such lawsuits. However, in this case, the plaintiffs were unable to point to any clear circumstance or policy that suggested the employer routinely directed its employees to work off the clock without pay.

As an example, previous off-the-clock work lawsuits have pointed to software that prevented an employee from registering overtime hours, or software that automatically clocked the user out at the end of a scheduled shift in spite of the worker, in reality, having to continue working to finish a task.

In the absence of such evidence, the Unpaid Wages lawsuit was based on the premise that a strict dollar limit on labor costs coupled with a long list of tasks employees were required to perform and complete amounted to a “no policy policy” designed to create an environment where unpaid overtime would occur, and to prevent lawsuits.

In the end, the court didn’t agree with the thrust of the proposed class action, noting that the existence of a labor budget and a demanding model for sales is not a de facto reflection that the employer requires, expects, demands or even implies off-the-clock work.

The court did not suggest that plaintiffs’ claims didn’t have merit. However, the court decided that the action did not have a sufficient foundation to merit class-action status and, thus, employees wishing to pursue the matter would have to do so individually on a case-by-case basis.

The off-the-clock work lawsuit was brought under the Fair Labor Standards Act (FLSA) and is Lindsay, et al., v. Clear Wireless LLC et al, Case No. 13-834, In US District Court, District of Minnesota. The motion to decertify was granted March 10.


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