Anderson v. Mt. Clemens Pottery Co.: Burden of Proving Off-the-Clock Work
The Supreme Court classic Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), concerned the extent to which employees’ pre-work activities are compensable working time under the Fair Labor Standards Act (for the text of the FLSA, go here). The case also addressed which party has the burden of proving how much time employees spend engaged in compensable working time. In short, the Supreme Court held that preliminary work activities, like putting on uniforms or preparing tools, were controlled by the employer and performed for the employer’s benefit, are properly included as working time under the FLSA. The Court further held that under the FLSA employees must be compensated for significant time spent preparing to work at the job site. The Court also decided the employer has the burden of proof for determining the exact wages owed to employees who perform off-the-clock work.
As discussed in an earlier post, Section 7(a) of the FLSA defines working time, and requires employers to pay overtime wages under certain circumstances. 29 U.S.C. § 207(a). Section 11(c) of the FLSA requires employers to keep accurate records regarding time on the job. 29 U.S.C. § 211(c). Section 16(b) of the FLSA enables employees to sue to recover lost wages. 29 U.S.C. § 216(b).
Mt. Clemens Pottery Company employed 1,200 workers at an 8-acre Michigan facility. The plant was about 400 meters long. The employees entered the plant on one side, and worked on the other side. 328 U.S. 682-83.
A time clock was located near the entrance. The employer gave employees 14 minutes between each shift to punch the time clock, walk to their respective workbench and prepare for work. It took a minimum of eight minutes for all the employees to get by the time clock. The estimated walking time for employees ranged from 30 seconds to three minutes, but some workers needed as many as eight minutes to reach their workbenches. Upon arriving at their workbenches, employees were required to put on aprons or overalls, remove shirts, tape or grease arms, put on finger cots, prepare equipment, turn on switches, open windows, and/or assemble or sharpen tools. These kinds of “preparatory activities” took three to four minutes. Id.
The employer calculated working time under the FLSA based on the time cards punched by the clocks. The employer then deducted walking and preparatory time from the time cards based on the punched time and assumptions about how long prep work and walking would take on average. 328 U.S. 683-84.
Seven employees and their labor union brought a collective action under Section 16(b) of the FLSA, on behalf of themselves and other similarly situated workers. The suit alleged that the employer’s calculations did not accurately reflect the time actually worked and that they were deprived of the proper amount of overtime compensation. In short, the employees claimed that the employer’s method of computation (i.e. deducting time from their recorded time at the worksite to eliminate time spent on preliminary activities) did not accurately reflect all the time actually worked. Therefore, the employees argued, they were thereby deprived of the proper overtime compensation guaranteed them by Section 7(a) of the FLSA. The employees claimed, among other things, that all employees worked approximately 56 minutes more per day than the employer gave them credit for and that, in any event, all the time between the hours punched on their time cards constituted compensable working time. 328 U.S.C. 684.
The Court’s Decision
The Court held that when an employee sues her employer under the FLSA for unpaid minimum wages or unpaid overtime pay, claiming the employer has kept inadequate records of the employee’s time actually worked, and the employee produces sufficient evidence to show the amount of work for which the employee was not properly compensated as a matter of “just and reasonable inference,” the burden shifts to the employer to produce evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference favoring the employee. 328 U.S.C. § 687. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result may only be approximate, based on a reasonable estimate of amount of time the employee worked without compensation. Id. In other words, where the employer has not kept accurate records of all the time an employee works, the employer cannot complain that the unpaid minimum wages or overtime pay awarded to the employee lack the exactness that would have been possible had the employer kept accurate records. Id.
In reaching this conclusion, the Court reasoned that Section 11(c) of the FLSA imposed upon the employer, not the worker, the duty to keep proper records of wages, hours and other conditions and practices of employment. Where an employer fails to keep accurate records of time worked (i.e. including time worked off the clock, or time spent conducting preliminary activities before clocking in), the law does not deny recovery on the ground that the employee is unable to prove the precise extent of her uncompensated work. That approach, the Court reasoned, would create a strong disincentive for employers to keep any records at all and shift the burden of time-keeping back onto the employee. The Court therefore concluded that “an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” 328 U.S. at 687.
The Court remanded the case to the trial court to determine how much time (on average) was spent walking and how much time doing preparatory activities and to enter an award of lost wages based only the amount of time engaged in preparatory activity.
In practical terms, the Court’s decision in Mt. Clemens Pottery meant that once an employee testifies she has not been fully compensated for all the time she worked, the employer has the burden of proof for determining the exact wages owed to the employee for performing off-the-clock work. If the employer has not kept complete records of all time worked, including off-the-clock work, the employee may be awarded unpaid minimum wages or overtime pay based on a just and reasonable estimate of the uncompensated time she worked.
In light of the Court’s ruling in Mt. Clemens Pottery, in 1947 Congress amended the FLSA by enacting the Portal to Portal Act of 1947. 29 U.S.C. § 251, et seq. Among other things, the Portal to Portal Act sought to impose some limits on employer liability for time employees spent in “preliminary and postliminary” activity. 29 U.S.C. § 254(a).
The Supreme Court reaffirmed Mt. Clemens Pottery in the 2016 case Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036 (2016). In so holding, the Court reiterated that “where an employer violated its statutory duty to keep proper records, the [Mt. Clemens Pottery] Court concluded the employees could meet their burden by proving that they in fact ‘performed work for which [they were] improperly compensated and … produc[ing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.’” 136 S. Ct. 1036, 1040 (2016) (quoting Mt. Clemens Pottery, 328 U.S. at 687.)
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