MANISH S. SHAH, District Judge.
Plaintiff Michael Meadows brings this action against his employer, defendant NCR Corporation, for unpaid wages in violation of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., and the Illinois Minimum Wage Law, 820 ILCS § 105/1, et seq. NCR moves for summary judgment. For the following reasons, NCR's motion is denied.
Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine dispute as to any material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A court must view all facts and reasonable inferences in the light most favorable to the non-moving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013).
Meadows has worked for NCR as a Customer Engineer for over eight years. [166] ¶ 8.
NCR requires CEs to read and periodically review the NCR U.S. Customer Engineer Human Resources Handbook so that they are familiar with and can abide by NCR's policies. [165-3] at 3-4. If CEs have a question about "the content or interpretation" of the policies, the handbook directs CEs to contact their managers or to consult with "HR Central." Id. at 4. These written policies provide specific details about how CEs should schedule their workdays.
NCR assigns each CE a "regular work shift," which territory managers have the discretion to change based on staffing needs, workload, and other factors. Id. at 7. At least thirty minutes before a CE's scheduled shift, the CE must check in with the "Operations Center" and update his whereabouts. Id. at 8. The handbook states: "In total, these activities should take no more than one or two minutes to complete." Id. Beyond this requirement for CEs to "briefly" check their mobile devices to determine the location of their first assignment, CEs are prohibited from performing any work before the start of their scheduled shifts. Id. at 15. The first thirty minutes of a CE's commute to his first customer worksite is not compensable; accordingly, the handbook prohibits CEs from performing work (taking calls or answering emails for longer than one or two minutes) during that time.
At some time during their shift, NCR expects CEs to take an unpaid lunch break. Id. at 11. Since a CE's schedule "flexes to meet customer needs," NCR asks CEs to use their "best judgment" in deciding when to take a lunch break during their shift. Id. Immediately before taking a lunch break, CEs must inform the Operations Center that they are doing so, and CEs must update their status via their mobile devices to indicate that they are taking a lunch break until a specified time. Id. CEs may not work during their unpaid lunch break; NCR requires CEs to contact their managers if they are being interrupted during their reported lunch break Id. at 11, 15 ("If you receive a business call, text or email from NCR or a customer during your lunch break, you are to delay your response until you are back on the clock; you have the right not to answer or respond to it until that time.").
In addition to repairing point-of-sale machines in the field, [182] ¶ 2, CEs also have to perform any number of administrative tasks during their shifts: answering phone calls, responding to emails
Once a CE completes his last call of the day, the handbook directs him to stop working, unless otherwise instructed by his manager. Id. at 9. At the end of a shift, CEs must check in with the Operations Center and (1) close out any completed incidents, (2) move any active calls that continue into the next work period to an available CE on the next shift, and (3) update their whereabouts as unavailable. Id. at 8. The last thirty minutes of a CE's commute from his last worksite to his home is not compensable; as a result, the handbook prohibits CEs from performing work (taking calls or answering emails for longer than one or two minutes) during that time. Id. at 9. CEs may not resume working once they arrive at their homes. Id.; see also id. at 15 ("Unless you have received prior approval from your supervisor, you are prohibited from processing parts at your home.").
Even though "NCR expects CEs to work within the work schedules set by their managers," CEs are nevertheless required to report any time they spend working, even if they worked outside of their scheduled shift and even if they worked overtime without prior approval. Id. at 15, 18. The handbook expressly prohibits supervisors from "encouraging or even suggesting" that CEs should work off-the-clock, but ultimately NCR places responsibility with the CEs for accurately reporting the time they spend working. Id. at 15.
NCR assigned Meadows a "regular work shift" from 8:00 a.m. to 4:00 p.m., [166] ¶ 8, but Meadows says that NCR required him to work before and after that time, and that NCR did not compensate him for that additional work, [165-1] ¶¶ 10-15; [176] ¶¶ 3, 6-13. When asked about his allegations that NCR requires him to perform off-the-clock work in reference to NCR's written policies, Meadows acknowledged that the handbook prohibits off-the-clock work, but he explained that each of his territory managers have directed him to work off-the-clock. [165-2] at 22, 79:24-80:4
On a daily basis, Meadows says he performs about 1.3 hours of unpaid work for NCR.
At least thirty minutes before his shift is scheduled to begin, Meadows says that NCR requires him to read his emails. [165-1] ¶¶ 11, 14; [176] ¶¶ 3, 6. He checks emails from his cell phone to get general instructions and to make sure that he does not have to re-prioritize particular service calls.
Before his shift, Meadows says that NCR also requires him to review work orders from his cell phone and to communicate with the Operations Center.
By 7:30 a.m., Meadows is in his company-owned vehicle commuting to his first assignment of the day. Id. ¶ 8. It typically takes Meadows thirty minutes to commute to his first worksite. Id. ¶ 25. Despite the fact that Meadows is not compensated for the first thirty minutes of his commute, he often spends this time working because he makes or receives calls from the Operations Center in order to understand where the parts are located for specific service calls, or he commutes to pick up or drop off parts at FedEx. Id.; [165-2] at 17, 60:20-23. For the remainder of his shift, Meadows responds to service calls, commutes between worksites, and performs other related activities; his schedule is very tight and it usually does not allow him enough time to take a lunch break.
After Meadows completes his last job in the field, he clocks out for the day, per NCR policies, even though he is often required to perform additional work: dropping off parts at FedEx, unloading his company car, ordering parts for his assignments the next day, entering his time for payroll purposes, undertaking additional recordkeeping, and commuting home.
Meadows never complained to or through anyone at HR Central that he had been required to work off-the-clock. [165-2] at 28, 105:2-6. He attempted to communicate with HR Central via a hotline many years ago about a different issue, id. at 28-29, 105:14-106:2; but, he explained that when an NCR employee leaves a message with HR Central, they do not usually return the employee's call. Id. at 28, 105:19-22. None of Meadows' managers have questioned him about his time entries, refused to approve his time entries, or told him that he needed to change his time entries. Id. at 25, 90:11-20. In fact, Meadows has worked overtime without prior approval, and as far as he knows, NCR has not denied him payment for that work. Id. at 25, 91:23-92:3. Meadows says that when he recorded his time accurately, NCR paid him the for work that he performed before and after his shift, as well as during his lunch break. [182] ¶ 36.
Meadows argues that he was not properly compensated for the time he spent working before his shift, during his lunch break, and after his shift. In response, NCR says that the activities Meadows performed before and after his shift are not compensable under the FLSA, and even if those activities were compensable as a matter of law, NCR did not know that Meadows was performing those acts and therefore it cannot be held liable under the FLSA.
The FLSA requires employers to pay overtime to non-exempt employees who work more than forty-hours in a workweek. 29 U.S.C. § 207(a). The employee bears the burden of proving that he performed overtime work and that he was not compensated for that work. Kellar v. Summit Seating Inc., 664 F.3d 169, 173 (7th Cir. 2011). The employer bears the burden of establishing that the FLSA exempts it from liability. Id.
Not all work-related activities are compensable under the FLSA. 29 U.S.C. § 254; Musch v. Domtar Indus., Inc., 587 F.3d 857, 859 (7th Cir. 2009). The Portal-to-Portal Act of 1947 amended the FLSA to exempt employers from liability based on two categories of work-related activities:
29 U.S.C. § 254(a). In 1996, the Employee Commuting Flexibility Act added the following language to § 254(a)(2) of the PPA:
H.R. Rep. 104-585, 1. The term "principal activity or activities" refers to activities which the employee is employed to perform, and it includes all activities that are "integral and indispensable" to those activities. 29 C.F.R. § 790.8(b); IBP, Inc. v. Alvarez, 546 U.S. 21, 37 (2005). An activity is "integral and indispensable" if it is an intrinsic element of the principal activity and one that the employee cannot dispense with if he is to perform his principal activities. Integrity Staffing Sols., Inc. v. Busk, 135 S.Ct. 513, 517 (2014). In sum, activities that are "integral and indispensable" to an employee's principal activities are compensable, but activities that are "incidental" to the employee's use of a company-owned vehicle for commuting are not. See Chambers v. Sears Roebuck & Co., 428 Fed.App'x. 400, 414 (5th Cir. 2011). It is undisputed that Meadows's principal activity as a CE for NCR was to service point-of-sale machines and systems at NCR's client sites. [182] ¶ 2. What the parties dispute is whether the other activities he performed before and after his shift were integral and indispensable to that principal activity.
NCR notes that the two elements outlined in § 254(a)(2), as amended by the ECFA, are present here: Meadows uses a company car to travel to worksites, which are approximately thirty minutes away from his house, and he uses the car pursuant to an agreement with NCR; consequently any activities he performs that are "incidental" to his use of the car for travel should not be considered as part of his principal activities under the statute. It is NCR's position that the pre- and post-shift work that Meadows performs (reviewing his emails, work orders, and assignments; checking in with the Operations Center; mapping his route and establishing ETAs; loading his company car; logging mileage; and entering his hours) are incidental to his commute and are not compensable under the FLSA. See [144] at 17-19. Other courts have found that this type of work by field service technicians was not compensable.
Meadows says that NCR minimizes the importance of his pre- and post-shift duties, which he believes are an intrinsic element of his duty to service point-of-sale machines. To support his theory, Meadows points to five other cases. See [167] at 17, 19-20. Three of the cases pre-date the ECFA (and so shed no light on whether work that is incidental to commuting is integral to principal activity),
The ECFA does not define which activities are "incidental" to commuting in a company-owned vehicle because "it is not possible to define in all circumstances what specific tasks and activities would be considered `incidental' to the use of an employer's vehicle for commuting." H.R. Rep. 104-585, 5. The House Report offers some guidance, though:
H.R. Rep. 104-585, 5. Lawmakers understood activities like contacting the Operations Center and establishing ETAs are an unavoidable consequence of using a company car and they decided that such activities should be viewed in the same way as were the minor tasks that existed before company-owned vehicle programs, which the FLSA and its implementing regulations have long characterized as non-compensable. Considering this language and the weight of the persuasive authority available after the enactment of the ECFA, it follows that Meadows's pre- and post-shift activities (reviewing his emails, work orders, and assignments; checking in with the Operations Center; mapping his route and establishing ETAs; loading his company car; logging mileage; and entering his hours) are incidental to his use of the company car for commuting. These activities are routine communications tied to receiving instructions, related to updating work progress, or transportation of supplies—these are incidental to the act of commuting and distinct from the principal activity of servicing point-of-sale machines.
Meadows offers two alternate theories of compensability for his off-the-clock work. First, Meadows argues that even if the court finds that his pre- and post-shift work is incidental to his commute, those activities nevertheless constitute the start and end points of his workday, and thus, they are compensable under the continuous workday doctrine. To support his argument, Meadows points to Butler, which held that a de minimis activity can constitute a principal activity that triggers the start of the continuous workday. 55 F.Supp.3d at 817.
The FLSA's implementing regulations are quite clear that the start and end of the continuous workday are only triggered when an employee engages in a principal activity. 29 C.F.R. § 790.6(a); see also IBP, 546 U.S. at 28 (2005); Kellar, 664 F.3d at 174. And while the facts in Butler suggested that some de minimis activities were integral to the principal activity at issue, as discussed above, Meadows's pre- and post-shift activities in this case do not qualify as principal activities because they were merely incidental to his commute in a company-owned car, and they were not integral to the work of servicing point-of-sale machines. See also H.R. Rep. 104-585, 5 ("Activities which are merely incidental to the use of an employer-provided vehicle for commuting [are] not considered part of the employee's principal activity or activities."). As a result, Meadows's pre- and post-shift activities do not trigger the start or the end of the continuous workday, and the continuous workday doctrine does not render Meadows's off-the-clock work compensable.
Second, Meadows asserts that his pre- and post-shift activities are compensable under § 254(b), which provides that notwithstanding the exemptions to employer liability in subsection (a), an employer will be liable under the FLSA if it does not compensate an employee for activities for which the employer otherwise agreed to compensate the employee through contract, custom, or practice.
In Blakes v. Illinois Bell Telephone Company, cable splicers and a class of opt-in plaintiffs brought an FLSA claim against their employer for its failure to pay overtime wages; the employer moved for summary judgment on the plaintiffs' certified claim and the court denied that motion. 77 F.Supp.3d 776 (N.D. Ill. 2015). The employer argued, in relevant part, that the time plaintiffs spent filling out timesheets was a non-compensable postliminary activity under the FLSA. Id. at 780. The undisputed record in Blakes showed that when cable splicers recorded the time they spent completing timesheets during and after their shifts, the employer paid for that time. Id. at 781. Additionally, the record showed that the employer's manual provided that timesheet completion was compensable work. Id. The Blakes court reasoned: "it appears that [the employer's] policy has been to compensate for timesheet entry, even if done post-shift," therefore, under § 254(b)(2), "[the employer's] custom and practice of paying technicians for [completing timesheets] obligates the company to compensate for that time, even if it would otherwise be non-compensable." Id. at 782 (internal citations omitted).
NCR argues that the record in this case does not support a finding that a Blakes-like "custom or practice" exists. According to NCR, Meadows has not produced evidence of NCR's "longstanding acquiescence" to pay for the specific pre-and post-shift activities—commuting between his home and his first and last field assignments; reviewing, mapping, and prioritizing his assignments; and loading and unloading his car—on which Meadows bases his claim. [180] at 12 (citing Blakes, 77 F.Supp.3d at 781). NCR is correct insofar as its argument involves commute time lasting thirty minutes or less. NCR's handbook and the testimony from NCR's Employee Relations Consultant expressly state that NCR will not pay CEs for the first thirty minutes of their commute in the morning and last thirty minutes of their commute in the evening. Meadows does not submit any evidence to controvert those facts. With respect to the other activities, though, NCR's handbook and the testimony from NCR's Employee Relations Consultant explain that Meadows's pre- and post-shift activities should only take one to two minutes, but, in the event that those activities take longer than one to two minutes, the CE is expected to record that time for the sole purpose of allowing NCR to pay the CE for that work. This evidence is enough to raise an issue of material fact about NCR's custom and practice of paying for pre- and post-shift activities that take a CE more than one to two minutes to complete, such as the activities on which Meadows predicates his claim. NCR is not entitled to summary judgment on the issue of whether Meadows's pre- and post-shift work was compensable.
Knowledge is an element of an FLSA claim. Kellar, 664 F.3d at 177. NCR argues that it is entitled to summary judgment because Meadows cannot show that NCR knew about Meadows's off-the-clock work. Meadows worked in the field on his own; Meadows failed to accurately report the hours he worked; no one employed by NCR changed Meadows's time records; no one employed by NCR reprimanded Meadows for the hours he submitted; Meadows never complained to or through HR Central about his off-the-clock work; and NCR paid Meadows in the past for his overtime work whenever Meadows recorded those hours, even when he did not seek prior approval to work those hours as required by NCR policy. In essence, NCR argues that it had robust timekeeping policies that prohibited off-the-clock work and inaccurate time reporting, and an employee's unilateral decision to work before his shift began, through his lunch period, after his shift ended, and to fail to report that time, is not something NCR should be aware of, nor is it something that should make NCR liable under the FLSA.
The FLSA seeks to prevent employers from evading liability by burying their heads in the sand when their employees are performing overtime work. Allen v. City of Chicago, 865 F.3d 936, 938 (7th Cir. 2017) (citing 29 U.S.C. § 203(g)). In light of this, the statute defines the verb "employ" as "to suffer or permit to work," 29 U.S.C. § 203(g), and its implementing regulations make clear that liability extends to an employer when the employer knew or had reason to believe that its employees were performing overtime work. 29 C.F.R. §§ 785.11-785.13. That is true even if the employer did not request that the employee perform the work, id. § 785.11; even if the employee performs the work away from the worksite or at home, id. § 785.12; and even if the employer had promulgated a rule against such work, id. § 785.13. An employer can only escape liability by showing that in addition to not having actual knowledge of the work, it did not have constructive knowledge because reasonable diligence would not have helped the employer learn of the work. Allen, 865 F.3d at 938. An employer cannot be held liable under the FLSA for work that it did not know about and that it had "no reason to know about." Kellar, 664 F.3d at 177.
Given Meadows's testimony that NCR's written policies prohibiting off-the-clock work were being violated in practice, that territory managers wanted CEs to work off-the-clock, and that each of Meadows's managers have instructed him to work off-the-clock (e.g. to enter 8:00 a.m. as his start time in NCR's timekeeping system even if he had begun working before then), there is a genuine issue of material fact as to NCR's knowledge. See [165-2] at 22, 79:20-80:11; id. at 23, 83:13-84:8; id. at 27, 98:16-99:18. That NCR had clear written policies prohibiting off-the-clock work and inaccurate time recording is no defense. See Allen, 865 F.3d at 939 ("an employer's formal policy or process for reporting overtime will not protect the employer if the employer prevents or discourages accurate reporting in practice"). Similarly, evidence that NCR has paid Meadows for overtime in the past does not negate the fact that Meadows was encouraged to and did underreport his hours on other occasions. See id. ("the employees' jobs demanded `long and irregular hours,' but their supervisors `insisted that all work be completed within certain defined time limits.' The employer's practices effectively `squelched truthful responses' in overtime reports") (citing Brennan v. Gen. Motors Acceptance Corp., 482 F.2d 825, 827-28 (5th Cir. 1973)). Direction or pressure from a supervisor is sufficient here to raise an issue of material fact about NCR's constructive knowledge of Meadows's off-the-clock work.
NCR's remaining arguments—that it did not have knowledge of Meadows's off-the-clock work due to the fact that Meadows worked in the field on his own and unilaterally decided to perform work off-the-clock—need not be addressed since Meadows has sufficiently raised an issue of material fact through other evidence as to whether NCR knew that he was working off-the-clock; nevertheless, those arguments also fail. The facts of this case are distinguishable from those that NCR cited where the employees' actions or other circumstances prevented the employer from learning of the overtime work. See, e.g., Gaines v. K-Five Const. Corp., 742 F.3d 256, 271 (7th Cir. 2014) ("In this case, Gaines presents no evidence that his arriving at work early should have raised a flag that he was working unauthorized overtime."). As Meadows notes, NCR should have learned about his off-the-clock work through reasonable diligence because NCR has electronic records of the emails Meadows sends, the changes he made to his status throughout the workday, the updates he made to work orders and assignments, as well as GPS records from his company car, all of which would have shown when and what work Meadows performed. NCR argues that it does not have a "forensic duty" to uncover Meadows's unrecorded hours, and that its ability to access those electronic records does not establish its constructive knowledge because the standard is what NCR should have known, not what it could have known. I agree with NCR's articulation of the standard, but I am persuaded by Meadows's argument that NCR's access to these electronic records is evidence that NCR should have acquired the information through a reasonably diligent search; they do not represent merely what NCR could have known. NCR is not entitled to summary judgment on the issue of knowledge.
NCR argues that Meadows lacks specificity regarding his damages for his uncompensated work, and as a result, NCR is entitled to judgment as a matter of law. While it is true that an employee who brings an action for unpaid wages "has the burden of proving that he performed work for which he was not properly compensated," Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946); Kellar, 664 F. 3d at 173, 177, the standard by which the employee must make that showing is lower when the employer failed to keep accurate records.
The FLSA requires employers to "make, keep, and preserve" its employees' records concerning "wages, hours, and other conditions and practices of employment." 29 U.S.C. § 211(c). If an employer's inadequate records cause the plaintiff to have difficulty proving his damages, the plaintiff can meet his burden by showing the "amount and extent of [his unpaid] work as a matter of just and reasonable inference." See Anderson, 328 U.S. at 687; see also Brown v. Family Dollar Stores of IN, LP, 534 F.3d 593, 595 (7th Cir. 2008) ("To place the burden on the employee of proving damages with specificity would defeat the purpose of the FLSA where the employer's own actions in keeping inadequate or inaccurate records had made the best evidence of such damages unavailable."). If the plaintiff meets that low burden, then the burden shifts to the employer to produce evidence of the precise amount of work the employee performed or evidence to negate the reasonableness of the inferences that can be drawn from the employee's evidence. Anderson, 328 U.S. at 687-88. If the employer fails to meet that burden, a court may award damages even though they are approximations. Id. at 688.
Meadows's evidence that each of his managers instructed him to perform off-the-clock work in direct contravention of NCR's policies is sufficient to raise a genuine issue of material fact about the accuracy of NCR's records. In response to the shifted burden, NCR does not provide any evidence about the amount of work Meadows performed, even though, according to Meadows, NCR could glean such information by cross-referencing Meadows's time entries, status updates, emails, and GPS data.
Defendant's motion for summary judgment, [142], is denied.
