Worker Can Grill Black|& Decker on Overtime

     MANHATTAN (CN) – The 2nd Circuit revived a class action that claims hardware honcho Black & Decker failed to pay its employees overtime.

     Though the three-judge panel said that lead plaintiff Greg Kuebel has a triable claim in the overtime issue, it affirmed a lower court’s decision that Kuebel can not seek compensation for his commute to and from Home Depots that stock Black & Decker products.
     As a retail specialist for Black & Decker, Kuebel was supposed to oversee product merchandising and marketing at Home Depots in his assigned territory.
     He was fired after about nine months on the job because his bosses discovered Kuebel had been falsifying his timesheets.
     In his labor action against the company, however, Kuebel claimed that he had to falsify his timesheets because his supervisors forbade him from working more than 40 hours a week, yet expected him to put in the extra hours.
     “Viewing the record in the light most favorable to Kuebel, B&D was aware that Retail Specialists’ responsibilities would push them very close to, if not over, the forty-hour threshold, and three of Kuebel’s managers conveyed to him that he should do what it takes to finish the job, but not record any overtime,” Judge Barrington Parker wrote for the appellate court’s three-judge panel.
     A federal judge had previously dismissed this claim, finding that Kuebel was unable to specify the amount of unpaid overtime work he completed and was imprecise with respect to damages.
     Employers, however, are responsible for maintaining accurate records of the hours that their employees work, the federal appeals court found.
     “Once an employer knows or has reason to know that an employee is working overtime, it cannot deny compensation simply because the employee failed to properly record or claim his overtime hours,” Parker wrote.
     Kuebel says his supervisors specifically told him not to record overtime hours.
     “At least where the employee’s falsifications were carried out at the instruction of the employer or the employer’s agents, the employer cannot be exonerated by the fact that the employee physically entered the erroneous hours into the timesheets,” the ruling states. “As the district court emphasized, Kuebel admits that it was he who falsified his timesheets. … But his testimony – which must be credited at the summary judgement [sic] stage – was that he did so because his managers instructed him not to record more than forty hours per week.”
     To prevail on his overtime claim, Kuebel must show that Black & Decker knew he was working off the clock.
     “The district court discounted Kuebel’s testimony [that he complained to a supervisor about not being paid for overtime], relying on the fact that he never lodged a formal complaint using B&D’s anonymous reporting hotline,” according to the ruling. “But while that fact might conceivably hurt Kuebel’s credibility at trial, it does not warrant summary judgment for B&D.”
     As to Kuebel’s commute claims, Black & Decker said it relied upon Department of Labor guidelines in adopting a policy of paying the specialists for travel time that exceeded one hour during the morning commute and an hour during the evening commute.
     Kuebel argued that he deserved compensation for all his commuting time because, he said, his workday began and ended at home, when he spent 15 to 30 minutes tackling administrative tasks in the morning before hitting the road, and then 15 to 30 minutes doing the same at the end of the day.
     The appellate judges rejected this argument.
     “Even if Kuebel’s at-home activities were integral and indispensable to his principal activities, they do not render the entirety of his commute time compensable under the FLSA,” Parker wrote, using the acronym for the Fair Labor Standards Act.
     “The fact that Kuebel performs some administrative tasks at home, on his own schedule, does not make his commute time compensable any more than it makes his sleep time or his dinner time compensable,” Parker continued, adding that “on his own schedule” is the operative term in this case.
     The judges noted legal precedent holding that even if a worker performs a critical employment responsibility after completing the evening commute, the performance of the “principal activity” does not extend the workday and render the evening commute compensable, as the worker is afforded flexibility in deciding when to complete the post-commute tasks at hand.
     “Indeed, there is nothing in the record to suggest that a Retail Specialist could not, for example, wake up early, check his email, synch his PDA, print a sales report, and then go to the gym, or take his kids to school, before driving to his first Home Depot store of the day; nor was Kuebel prevented from leaving his last store of the day and going straight to a restaurant for dinner, or waiting until late at night to synch his PDA (as electronic records show he sometimes did),” according to the 26-page opinion.

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