Woman loses appeal for overtime pay

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A sewing manager who sued her former employer to obtain overtime pay for work she did before her shift started lost her appeal because the employer didn’t know that she was working prior to her shift, the 7th Circuit Court of Appeals ruled Wednesday.

In Susan Kellar v. Summit Seating Inc., No. 11-1221, Susan Kellar sued Summit Seating Inc. on the premise that she is entitled to overtime under the Fair Labor Standards Act for work she performed before the official start of her work shift. Her shift began at 5 a.m., but she said she would clock in 15 to 45 minutes early to review schedules, gather fabric, make coffee for employees and prepare work stations so that other employees could begin work right at 5 a.m. She said she would take a five-minute break during that time to smoke and socialize with her sister and co-worker Mamie Spice. Spice claimed that Kellar never performed any work before her shift and would chat and drink coffee until the shift began.

Kellar never mentioned to the company owners during the eight years she worked at Summit that she was working before her shift.

The District Court granted summary judgment to the company, finding Kellar’s pre-shift activities were “preliminary,” that any work she did before her shift was “de minimis” and Summit didn’t know she was working before her shift. The 7th Circuit affirmed on the issue of Summit being unaware of Kellar working prior to her shift start, but disagreed with the lower court’s conclusions regarding the “preliminary” and “de minimis” nature of Kellar’s pre-shift work.

Summit conceded for purposes of its motion for summary judgment that Kellar performed pre-shift work but argued it was “de minimis” in large part because it would have been administratively difficult to determine how much of that time is compensable. Kellar testified that she did the same activities each morning and may have spent up to 40 minutes performing them before her shift started. Judge Ann Claire Williams noted that Summit didn’t point to any cases that have found work exceeding between 10 and 15 minutes in duration is “de minimis.”

The court affirmed on the issue of Summit’s lack of knowledge that Kellar was performing these activities before her shift. Many Summit employees clocked in early and then socialized before their work shifts began, and nothing in the record shows the owners, who were aware of this practice, had reason to believe that Kellar was arriving early in order to work, wrote Williams. In addition, Kellar never mentioned to the owners that she was working prior to her shift.



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