Employment- Seventh Circuit Rules That An Employee Need Not Be Paid Overtime For Work Performed Prior To The Start Of Her Work Shift

In Kellar v. Summit Seating Incorporated, No. 11-1221 (7th Cir. 2011), the plaintiff, Susan Kellar (“Kellar”), alleged that she is entitled to overtime, under the Fair Labor Standards Act (the “FLSA”), for work performed prior to the official start of her work shift. The district court granted summary judgment in favor of her employer, defendant Summit Seating Incorporated (“Summit”), and Kellar appealed.

Kellar claimed that she regularly arrived at Summit’s factory (they made seats for buses and other vehicles) between 15 and 45 minutes before the start of her 5:00 a.m. shift. Upon arrival, Kellar-a sewing manager-said that she would spend: (1) about 5 minutes unlocking doors, turning on lights, turning on a compressor, and punching in on the time clock, (2) about 10 minutes preparing coffee for the rest of Summit’s employees, drinking coffee herself and smoking a cigarette, (3) 5 to 10 minutes (or longer) reviewing schedules, and gathering and distributing fabric and materials to her subordinates’ workstations, and (4) her remaining pre-shift time performing “prototype work” (preparing models for production), cleaning the work area, or checking patterns. According to Kellar, no one told her that she had to come in before her shift. In February 2009, Kellar voluntarily resigned, and brought this suit under the FLSA for overtime for her pre-shift work.

The Court found that Kellar’s pre-shift activities were not non-compensable “preliminary” activities under the Portal-to-Portal Act of 1947. Rather, Kellar’s activities were “principal” , and compensable and eligible for overtime, since they were integral and indispensable to the work that Kellar performed as a sewing manager, even if they occurred before the beginning of Kellar’s work shift. The Court found further that Kellar’s pre-shift activities were not “de minimis”, and did not fail to be compensable and eligible for overtime on that basis. Kellar’s activities involved a substantial amount of time. In contrast, work is de minimis only when it constitutes a few seconds or minutes of work beyond the scheduled working hours that cannot administratively be accounted for without extreme difficulty.

However, the Court found that Summit had no actual or constructive knowledge of Kellar’s work. The FLSA does not require an employer to pay for work that it did not know about, and had no reason to know about. Her time cards showed she had punched in early, but that does not prove that she was working prior to the start of her shift. During her 8 years of working for Summit, she never told the owners, or any of the other managers, that she was working overtime. Further, Kellar was aware of Summit’s policy prohibiting overtime work absent express permission. Again, no one had given her permission to do the pre-shift work. The Court concluded that, without the employer’s knowledge about Kellar’s pre-shift activities, those activities were not compensable or eligible for overtime, and the Court affirmed the district court’s summary judgment in Summit’s favor.