Defendants will often argue that conditional certification is not appropriate because it possesses written policies in place to prevent the FLSA violations based on an automatic meal break deduction – thus the proposed class is not similarly situated. However courts have held that “the existence of written policies setting forth proper rules for the payment of overtime does not itself immunize an employer from a finding that the employer willfully violated the FLSA.” Monroe v. FTS USA, LLC, 763 F. Supp. 2d 979 (W.D. Tenn. 2011); see also Carter v. City of Charleston, 995 F. Supp. 622, 626 (D.S.C. 1997) (having a written overtime policy is not dispositive as there can be a “failure to implement and/or enforce written policy”); 29 CFR 785.13 (“The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so”). Furthermore, a number of courts have conditionally certified classes alleging similar off-the-clock claims by corporate defendants with similar “prevention” policies.
For example, in Lindberg v. UHS of Lakeside, LLC, the plaintiffs alleged that the defendants “violated the FLSA by subjecting all hourly employees to a common policy that deducted a 30-minute meal period for each shift, regardless of whether or not employees had the opportunity to take a break, and made no effort to ensure that the employees were relieved of duty during that time.” 761 F. Supp. 2d. 752, 754 (W.D.Tenn. 2011). The defendants did not dispute the existence of the automatic 30-minute meal break deduction, but argued that the conditional certification was inappropriate because their auto-deduction policy on its face did not violate the FLSA since it provided “a mechanism for employees to reverse the automatic deduction.” Id. at 759; see also id. at 755 (noting that “employees were instructed and expected to record their missed meal[] break on a Time Adjustment Form, have their supervisor sign the form, and submit it to payroll for processing.”). TheLindberg court ultimately granted conditional certification of the class. Id. at 761. In reaching this conclusion, the court relied heavily on the fact that, as in this case, the automatic 30-minute deduction policy and correction mechanism “placed the burden of correction on hourly employees.” Id. at 760; see also id. at 761 (noting that Defendant “abandoned their duty ‘to ensure that non-qualifying meal breaks [were] not deducted from [employees’] pay.’”).
Similarly, the Western District of Pennsylvania conditionally certified a class of 30,000 non-exempt employees at separate facilities who were also subjected to an automatic 30-minute meal break deduction. See Camesi v. Univ. of Pittsburgh Med. Ctr., 2009 U.S. Dist. LEXIS 40571 (W.D. Pa. May 14, 2009). As in this case, the defendant in Camesi utilized a policy where the employee could take steps to effectively cancel the automatic deduction if he or she were not able to take the allotted break. Id. at *3. However, the Camesi court held:
UPMC’s written policies arguably shift the burden from Defendants to their employees to ensure that non-qualifying meal breaks are not deducted from their pay. See discussion supra (“employee[s’] time record[s are] set up to automatically deduct a 30 minute meal period after 5 hours worked,” and “it is the employee’s responsibility to make sure the automatic lunch deduction is cancelled” as appropriate). The law is clear that it is the employer’s responsibility, not its employees’, to ensure compensation for work “suffered or permitted.” See Chao v. Gotham Registry, Inc., 514 F.3d 280, 288 (2d Cir. 2008) (“[a]n employer who has [actual or constructive] knowledge that an employee is working, and who does not desire the work [to] be done, has a duty to make every effort to prevent its performance,” and “[t]his duty arises even where . . . the employee fails to report his . . . hours”) (citations omitted); Reich v. Brenaman Elec. Serv., 1997 U.S. Dist. LEXIS 4163, 1997 WL 164235, *3 (E.D. Pa. Mar. 28, 1997) (“[w]ork not requested but suffered or permitted is work time” and, so long as “[t]he employer knows or has reason to believe that [the employee] is continuing to work,” “[t]he [underlying] reason is immaterial”) (citations omitted).
Irrespective of whether or not UPMC’s “employee cancellation” policy ultimately is consistent with the FLSA, Defendants’ arguable attempt to shift statutory responsibilities to their workers constitutes an “employer policy” susceptible to challenge at this stage in the proceedings. As for Defendants’ denial of actual or constructive knowledge regarding employees’ noncompliance with the cancellation policy — a denial Plaintiffs have refuted through both allegations and evidence — this question also cannot be resolved through the conditional certification ruling. See discussion supra (“the court does not weigh the merits, resolve factual disputes, or make credibility determinations”).
Id. at *10-12 ; see also Abendschein v. Montgomery County, 984 F. Supp. 356, 359 (D. Md. 1997) (“Not paying employees for meal time is an exception to the FLSA compensation requirements that must be narrowly construed, and the burden is on the Defendant to show that it is entitled to the exception”) (Williams, J.).