DuPont’s Paid Break Doesn’t Offset Unpaid Work Time

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By Jon Steingart

Oct. 7 — DuPont can’t offset compensation it is obliged to provide employees for donning and doffing protective gear with pay it voluntarily provides them during midday breaks, a federal appeals court ruled ( Smiley v. E.I. duPont de Nemours and Co. , 3d Cir., No. 14-4583, 10/7/16 ).

The Fair Labor Standards Act lists a few situations in which an employer may offset compensation in one instance to meet an obligation to provide wages in another. Voluntarily paying employees during a midday break isn’t one of them, Judge Marjorie O. Rendell wrote Oct. 7 for the U.S. Court of Appeals for the Third Circuit.

The workers in this case won overtime pay, but the ruling is likely to result in companies changing their pay practices to more closely track and withhold pay for nonwork periods during the workday, the DuPont workers’ attorney told Bloomberg BNA Oct. 7. The company already altered its policies in this regard before the decision, Thomas More Marrone said.

Nevertheless, the ruling is a win for workers in the long run because its reasoning, drawn largely from FLSA statutory language and regulations that are applicable around the country, should influence courts nationwide, said More Marrone, of Philadelphia.

Decision Reframes Perspective on Offsetting

Any FLSA analysis begins with the premise that courts are required to interpret the statute in ways favorable to workers. It’s among the law’s “bedrock principles” that employers have to pay employees for all hours worked, Rendell said.

A lower court ruled for E.I. DuPont de NeMours and Co. because the break time exceeded the donning and doffing time. This was based on a faulty interpretation of what is allowed, required or prohibited, More Marrone said.

Courts have allowed offsetting because there’s nothing in the FLSA that prohibits it, he said. The Third Circuit’s ruling reframes the analysis by prohibiting offsetting except in the few circumstances where the law allows it, he said.

The case returns to the trial court for determination of how many hours within the statute of limitations the workers didn’t receive pay for. About 160 workers joined the lawsuit and are eligible to recover, More Marrone said.

A DuPont spokesman told Bloomberg BNA in an e-mail that the company is disappointed by the ruling and is exploring its legal options.

The workers were also represented by Patricia Pierce of Greenblatt Pierce Engle Funt & Flores LLC in Philadelphia. DuPont was represented by Ballard Spahr LLP attorneys David Fryman in Philadelphia and Amy Bashore in Cherry Hill, N.J.

To contact the reporter on this story: Jon Steingart in Washington at

To contact the editor responsible for this story: Peggy Aulino at

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