Employment Law Daily Comcast line techs resuscitate claims for unpaid pre- and post-shift activities
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Wednesday, March 2, 2016

Comcast line techs resuscitate claims for unpaid pre- and post-shift activities

By Brandi O. Brown, J.D. Granting in part a motion for reconsideration filed by cable line technicians in their overtime lawsuit against Comcast, a federal district court in Illinois amended an earlier summary judgment ruling in Comcast's favor, deciding instead that jury input was needed with regard to the employees' pre- and post-shift work allegations. The employees' success was due to the fact that they "highlighted" acts which, while present in the summary judgment record, had been missing from their earlier argument regarding custom or practice. The plaintiffs' motion was granted in part and the final judgment previously entered in the employer's favor was vacated (Brand v. Comcast Corp., February 25, 2016, Kim, Y.). In their lawsuit, filed under federal and state wage and hour laws, the cable line techs had alleged that Comcast failed to pay them for several categories of overtime work. Specifically, they claimed the company encouraged them to spend time before and after their shifts performing tasks, such as reviewing assignments, securing their vehicles, and performing work on laptop computers, but failed to pay them for that work. Additionally, they alleged that Comcast automatically deducted an hour from their schedule for daily meal breaks regardless of whether they worked through their breaks. Finally, they claimed they were entitled to compensation for time spent on call. Comcast moved for summary judgment as to these individual plaintiffs. Prior order. Previously, the court granted the employer's motion for summary judgment, concluding that the plaintiffs had not shown they were entitled to pay for uncompensated lunch break work, on-call waiting, or commuting-related tasks. In a consolidated motion, the plaintiffs sought reconsideration of the court's decision as to the uncompensated pre- and post-shift activities. The court granted their motion, in part. Pre- and post-shift activities. In its earlier decision, the court found the pre- and post-shift activities identified by the employees were incidental to their commute, within the meaning of the Employee Commuting Flexibility Act of 1996, and that they had not been made compensable by the employer's custom or policy. In their reconsideration motion the employees, for the first time, argued that the tasks they performed fell outside of the ECFA. In that regard argument was too little, too late. Their argument with regards to the court's ruling on custom and policy, however, was more persuasive. As they had done in their response to the employer's summary judgment motion, they argued that the employer had a custom or practice of paying for pre- and post-shift activities related to employees' use of a company vehicle for commuting purposes. Likewise, they again pointed to the court's decision in Blakes v. Ill. Bell Tel. Co. as providing support for their argument. However, this time around, they "highlighted a series of facts" that had been present in the summary judgment record, but missing from their previous arguments, that would "explain and support their position" with respect to custom or practice. Highlighted evidence missed before. This argument was not simply a rehash of their earlier arguments, but instead was intended to show how the court had previously "misapprehended a fact or set of facts," that could "present a valid basis for reconsideration." Previously the court had concluded that the employees' claims were unlike those of the cable splicers in Blakes who had presented evidence that the defendant had a policy of compensating splicers for certain activities, such as filling out timesheets, but that they had been instructed not to record any overtime for completion of timesheets. The court in Blakes had concluded that the evidence supported the argument that there had been long-term acquiescence to payment for that time. The evidence now highlighted by the Comcast technicians made it clearer how their claims lined up with Blakes. For example, they pointed to evidence of at least two plaintiffs who had been paid for their pre- and post-shift work when they recorded the time. They also noted testimony from managers and supervisors who stated that technicians should be paid for these activities and that they had, in fact, been paid for that time when it was recorded. With that evidence, the court concluded, a jury could find a custom or practice existed of paying for that type of work. Moreover, five of the plaintiffs also pointed to evidence that they complained about this unpaid time or had been instructed not to record it. One employee, for example, testified that he was instructed by his manager not to start his time based on when he turned on his computer but, instead, to record only his scheduled hours. Another testified that he was advised against recording his time from when he logged on, if that occurred before his regular start time, and he testified that several supervisors and managers knew he was logging on before his scheduled start time. A third testified that line technicians were told not to record time spent logging onto their computers. He testified that he was specifically told to log on at 7:00 a.m., but to record a 7:30 a.m. start time. Likewise he testified that he was told to report his end time as 4:30 p.m., even though he had not yet secured his truck or equipment. The other two plaintiffs presented similar testimony. Post-shift a "mixed bag." Although the plaintiffs' testimony with regards to pre-shift work was uniform, the evidence related to post-shift work was "more of a mixed bag." Summary judgment with regard to some of the individual plaintiffs' post-shift claims remained appropriate, but with regard to other plaintiffs the court found jury input was required.

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