Petition for Writ of Certiorari — East Penn Manufacturing Company, Inc., Petitioner v. Lori Chavez-DeRemer, Secretary, Department of Labor

Supreme Court briefJun 20, 2025

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No. 24-____

IN THE

Supreme Court of the United States

————

EAST PENN MANUFACTURING COMPANY, INC.,

Petitioner,

LORI CHAVEZ-DEREMER

SECRETARY, UNITED STATES DEPARTMENT OF LABOR,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

————

PETITION FOR WRIT OF CERTIORARI

————

MICHAEL J. MUELLER

EVANGELINE C. PASCHAL

HUNTON ANDREWS

KURTH LLP

2200 Pennsylvania Ave. NW

Washington, DC 20037

ELBERT LIN

Counsel of Record

DAVID M. PARKER

DAVID N. GOLDMAN

HUNTON ANDREWS

KURTH LLP

Riverfront Plaza

East Tower

951 East Byrd Street

Richmond, VA 23219-4074

(804) 788-8200

elin@huntonAK.com

Counsel for Petitioner

June 20, 2025

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

For the last three decades, this Court’s atextual

interpretation of the Fair Labor Standards Act (FLSA)

in Steiner v. Mitchell, 350 U.S. 247 (1956), has both

exploded in importance and fostered confusion,

prompting two attempts at clarification by this Court

while imposing billions in liability on employers.

In Steiner, this Court relied primarily on snippets of

legislative history to expand FLSA liability contrary to

clear statutory text. Shortly after the FLSA was

originally passed, this Court construed the term

“work” to include “preliminary activities” such as

changing clothes. Anderson v. Mt. Clemens Pottery

Co., 328 U.S. 680, 692-693 (1946). Congress responded

with the Portal-to-Portal Act, which amends the FLSA

to say “preliminary and postliminary” activities are

not compensable and only “principal” activities are.

But in Steiner, this Court again expanded FLSA

liability by creating a third category: “preliminary and

postliminary” activities deemed to be “principal

activities” if a court or jury finds them “integral and

indispensable” to such principal activities.

The questions presented are:

1. Whether time spent on “integral and indispensable” activities is measured based on reasonable

duration (as three circuits have held), or actual

duration (as four circuits have held).

2. Whether this Court should overrule Steiner.

(i)

PARTIES TO THE PROCEEDING BELOW

Petitioner East Penn Manufacturing Company, Inc.

was the defendant in the district court and the

appellant/cross-appellee in the Court of Appeals.

Respondent is Lori Chavez-DeRemer in her official

capacity as the Secretary for the United States

Department of Labor.1

RULE 29.6 DISCLOSURE STATEMENT

Under this Court’s Rule 29.6, Petitioner East Penn

Manufacturing Company, Inc., states that it is not

publicly traded and has no parent corporation, and no

publicly held corporation owns 10% or more of its

stock.

Pursuant to Federal Rule of Civil Procedure 25(d), Secretary

Chavez-DeRemer was automatically substituted for one of her

predecessors, former Acting Secretary Julie A. Su, who was

the most recently named plaintiff in the district court and

the appellee/cross-appellant in the Court of Appeals. Ms. Su and

several of her predecessors were automatically substituted

pursuant to Rule 25(d) throughout the district court proceedings

in this case.

iii

RELATED PROCEEDINGS

This case arises from the following proceedings:



Secretary, U.S. Dep’t of Labor v. East Penn Mfg.

Co., Nos. 24-1046, 24-1059 (3d Cir.), judgment

entered on December 19, 2024.



Su v. East Penn Mfg. Co., No. 5:18-cv-01194GEKP (E.D. Pa.), judgment entered on May 31,

2023.

The following proceeding is directly related to this

case under this Court’s Rule 14.1(b)(iii):



East Penn Mfg. Co. v. Chavez-DeRemer, No.

5:24-cv-03077-JLS (E.D. Pa.), case pending.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................

PARTIES TO THE PROCEEDING BELOW .....

RULE 29.6 DISCLOSURE STATEMENT .........

RELATED PROCEEDINGS ...............................

iii

TABLE OF AUTHORITIES ................................

vii

OPINIONS BELOW ............................................

JURISDICTIONAL STATEMENT .....................

RELEVANT STATUTORY PROVISIONS .........

INTRODUCTION ................................................

STATEMENT OF THE CASE ............................

A. Legal background......................................

B. Factual background ..................................

C. Procedural history ....................................

REASONS FOR GRANTING THE PETITION..

I. This Court should resolve how time spent

on “integral and indispensable” activities

should be measured ..................................

A. The circuits are divided over whether

reasonable time or actual time is the

correct metric .......................................

1. The First, Ninth, and Tenth

Circuits allow reasonable time ......

2. The Second, Fourth, and Sixth

Circuits require actual time ..........

3. The Third Circuit deepens the

split by requiring actual time ........

(v)

TABLE OF CONTENTS—Continued

Page

B. Reasonable time is the correct metric ...

II. Alternatively, this Court should overrule

Steiner .......................................................

A. Steiner was wrongly decided ...............

1. Steiner added words to the plain

text of Section 4(a) .........................

2. Steiner is logically incoherent........

3. Steiner’s limited textual analysis

is not convincing .............................

4. Congress has not implicitly

ratified Steiner ...............................

B. Steiner is not administrable ................

1. Steiner is inherently difficult to

apply ...............................................

2. Steiner continues to cause conflict

and confusion in the lower courts..

C. Steiner confers minimal reliance

interests ...............................................

III. This case is an ideal vehicle for resolving

these important questions ........................

A. “Integral and indispensable” activities

are now profoundly important ............

B. This case is the right vehicle...............

CONCLUSION ....................................................

APPENDIX

vii

TABLE OF AUTHORITIES

CASES

Page(s)

Aguilar v. United States,

36 Fed. Cl. 560 (1996) ...............................

Aguilar v. Mgmt. & Training Corp.,

948 F.3d 1270 (10th Cir. 2020) ........... 27, 29, 34

Alvarez v. IBP, Inc.,

339 F.3d 894 (9th Cir. 2003), aff’d,

546 U.S. 21 (2005) .................................. 8, 13-14

Ames v. Ohio Dep’t of Youth Servs.,

145 S.Ct. 1540 (2025) ................................ 3, 23

Anderson v. Mt. Clemens Pottery Co.,

328 U.S. 680 (1946) ......................... 4, 17, 18, 26

Balestrieri v. Menlo Park Fire Prot. Dist.,

800 F.3d 1094 (9th Cir. 2015) ................... 29, 34

Barrentine v. Arkansas-Best Freight

Sys., Inc.,

450 U.S. 728 (1981) ...................................

Barton v. Barr,

590 U.S. 222 (2020) ...................................

Bridges v. Empire Scaffold, L.L.C.,

875 F.3d 222 (5th Cir. 2017) .....................

Brock v. City of Cincinnati,

236 F.3d 793 (6th Cir. 2001) ..................... 13, 15

Brown v. Davenport,

596 U.S. 118, (2022) ..................................

Cadena v. Customer Connexx LLC,

51 F.4th 831 (9th Cir. 2022) .....................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

E.E.O.C. v. Abercrombie & Fitch Stores, Inc.,

575 U.S. 768 (2015) ...................................

Food Mktg. Inst. v. Argus Leader Media,

588 U.S. 427 (2019) ...................................

Franklin v. Kellogg Co.,

619 F.3d 604 (6th Cir. 2010) ............... 29, 30, 34

Gorman v. Consol. Edison Corp.,

488 F.3d 586 (2d Cir. 2007) ................ 29, 30, 34

Groff v. DeJoy,

600 U.S. 447 (2023) ...................................

Holzapfel v. Town of Newburgh,

145 F.3d 516 (2d Cir. 1998) ................. 13-15, 30

IBP, Inc. v. Alvarez,

546 U.S. 21 (2005) .................. 4-5, 7-9, 21-23, 34

Integrity Staffing Sols., Inc. v. Busk,

574 U.S. 27 (2014) ........................ 4, 9, 27-31, 34

Knick v. Twp. of Scott,

588 U.S. 180 (2019) ...................................

Lamie v. U.S. Trustee,

540 U.S. 526 (2004) ...................................

Llorca v. Sheriff, Collier Cnty.,

893 F.3d 1319 (11th Cir. 2018) ................. 28, 34

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ................... 3, 19, 20, 25, 26

Lopez v. Tyson Foods, Inc.,

690 F.3d 869 (8th Cir. 2012) .....................

TABLE OF AUTHORITIES—Continued

Page(s)

Lopez v. Tyson Foods, Inc.,

Civ. No. 8:06-cv-459, 2007 WL 1291101

(D. Neb. Mar. 20, 2007) ............................

Marx v. Gen. Rev. Corp.,

568 U.S. 371 (2013) ...................................

Milner v. Dep’t of Navy,

562 U.S. 562 (2011) ................................... 19, 21

Monroe v. Pape,

365 U.S. 167 (1961) ...................................

Muldrow v. City of St. Louis,

601 U.S. 346 (2024) ...................................

Musch v. Domtar Indus., Inc.,

587 F.3d 857 (7th Cir. 2009) .....................

N.L.R.B. v. SW Gen., Inc.,

580 U.S. 288 (2017) ...................................

Nichols v. City of Chicago,

789 F. Supp. 1438 (N.D. Ill. 1992) ............

Patterson v. McLean Credit Union,

491 U.S. 164 (1989) ...................................

Perez v. City of New York,

832 F.3d 120 (2d Cir. 2016) ................ 28, 30, 34

Perez v. Mountaire Farms, Inc.,

650 F.3d 350

(4th Cir. 2011) ................ 8, 13, 15, 27, 29-31, 34

Perry v. City of New York,

78 F.4th 502 (2d Cir. 2023) .......................

Peterson v. Nelnet Diversified Sols., LLC,

15 F.4th 1033 (10th Cir. 2021) .................

TABLE OF AUTHORITIES—Continued

Page(s)

Reich v. IBP, Inc.,

38 F.3d 1123 (10th Cir. 1994) ............. 13, 14, 16

Reich v. N.Y. City Trans. Auth.,

45 F.3d 646 (2d Cir. 1995) ........................ 7, 27

Rimini St., Inc. v. Oracle USA, Inc.,

586 U.S. 334 (2019) ...................................

Sandifer v. U.S. Steel Corp.,

678 F.3d 590 (7th Cir. 2012), aff’d,

571 U.S. 220 (2014) ...................................

Sandifer v. U.S. Steel Corp.,

571 U.S. 220 (2014) ................................... 4, 34

Star Athletica, L.L.C. v. Varsity Brands,

Inc.,

580 U.S. 405 (2017) ...................................

Steiner v. Mitchell,

350 U.S. 247 (1956) ......... 1-3, 5-13, 19-29, 31-35

Tenn. Coal, Iron & R. Co. v.

Muscoda Local No. 123,

321 U.S. 590 (1944) ...................................

Tum v. Barber Foods, Inc.,

360 F.3d 274 (1st Cir. 2004), aff’d in

part, 546 U.S. 21 (2005) ........................ 7, 13, 14

Tyger v. Precision Drilling Corp.,

78 F.4th 587 (3d Cir. 2023), cert. denied,

144 S. Ct. 2604 (2024) .......................... 28-30, 34

United States v. Trans-Missouri

Freight Ass’n,

166 U.S. 290 (1897) ................................... 20-21

TABLE OF AUTHORITIES—Continued

Page(s)

Von Friewalde v. Boeing Aerospace

Operations, Inc.,

339 Fed. Appx. 448 (5th Cir. 2009) ..........

Wis. Cent. Ltd. v. United States,

590 U.S. 222 (2020) ...................................

Zuber v. Allen,

396 U.S. 168 (1969) ................................... 25, 26

STATUTES AND REGULATIONS

28 U.S.C. § 1254(l) ........................................

Fair Labor Standrads Act, 29 U.S.C. § 201

et seq. ........................ 2-4, 6, 9, 15, 18, 25, 31, 33

§ 203(o) ...................................................... 24, 25

§ 206(a)(1) ..................................................

§ 207(a)(1) ..................................................

§ 208 note (1952 ed.) .................................

§ 211(c) ......................................................

§ 215(a)(2) ..................................................

§ 216 ..........................................................

§ 216(b)-(c) .................................................

§ 217 ..........................................................

§ 218(a) ......................................................

Portal-to-Portal Act, 29 U.S.C. § 251

et seq. .................. 4, 6, 7, 9, 17, 18, 20, 24-27, 32

§ 251(a) .................................................. 4, 26, 32

§ 251(b) ......................................................

xii

TABLE OF AUTHORITIES—Continued

Page(s)

§ 252(a) ...................................................... 5, 23

§ 254(a) .................................. 5, 8, 20, 22, 23, 26

§ 254(a)(1) ............................................ 19, 20, 25

§ 254(a)(2) ..................................................

§ 254(b)(1) .................................................. 31, 35

§ 254(b)(2) ..................................................

29 C.F.R. § 790.6(a) ......................................

29 C.F.R. § 790.8 ..........................................

COURT FILINGS

U.S. Brief, IBP, Inc. v. Alvarez, 546 U.S. 21

(2005) (No. 03-1238) (Aug. 1, 2005) ..........

Pet. for Cert., Integrity Staffing Sols., Inc.

v. Busk, 574 U.S. 27 (2014) (No. 13-433)

(Oct. 3, 2013) .............................................

Pet. for Cert., Mountaire Farms v. Perez,

No. 11-497 (Oct. 3, 2011) ..........................

Pet. for Cert., Precision Drilling Co. v.

Tyger, No. 23-654 (Dec. 11, 2023).............

OTHER AUTHORITIES

93 Cong. Rec. 4388-4389 (1947) ...................

95 Cong. Rec. 11433 (1949) ..........................

Alfred & Schauer, Continuous Confusion:

Defining the Workday in the Modern

Economy, 26 ABA J. of Lab. & Emp. L.

363 (Spring 2011) ......................................

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

Barbu, The Ubiquitous Blackberry: The

New Overtime Liability, 5 Lib. U. L. Rev.

47 (Fall 2010) ............................................

Barron, “A Fair Day’s Pay for A Fair Day’s

Work”: Why Congress Should Amend the

Fair Labor Standards Act to Include an

Actual Time Test for Retroactive

Damages, 99 Iowa L. Rev. 1297 (2014) ....

Bruner, Toiling in Factory and on Farm:

An Employer-Friendly Approach to the

Compensability of Donning and Doffing

Activities Under the “FLSA,” 65 Clev. St.

L. Rev. 427 (2017) .....................................

Dep’t of Labor Wage and Hour Division,

Field Operations Handbook (Sept. 19,

1996) ..........................................................

Diener, Judicial Approval of FLSA Back

Wages Settlement Agreements, 35 Hofstra

Lab. & Emp. L.J. 25 (2017) ......................

The Fair Labor Standards Act: Hr’g Before

the H.R. Subcomm. on Workforce

Protections, 112th Cong., 1st Sess.,

Serial No. 112-33 (2011) ...........................

H.R. Rep. No. 71, 80th Cong., 1st Sess. (1947)

Lex Machina Legal Analytics, https://law.

lexmachina.com (last accessed June 17,

2025) ..........................................................

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

Panich & Murray, Labor & Employment

Corner, Back on the Cutting Edge:

“Donning-and-Doffing” Litigation Under

the Fair Labor Standards Act, The

Federal Lawyer (March/ April 2011) .....6-7, 26, 33

Ritzman, A State of Confusion: How the

FLSA Is Failing to Ensure A Fair Day’s

Pay and How to Address It, 50 U. Tol. L.

Rev. 163 (2018)..........................................

S. Rep. No. 37, 80th Cong., 1st Sess. (1947)... 4, 26

Seyfarth Shaw LLP, 2024 FLSA Litigation

Metrics & Trends, https://tinyurl.com/

FLSA filings2024 (last visited June 17,

2025) ..........................................................

Seyfarth Shaw LLP, FLSA Cases 1990,

1993-1999, 2000-2014, Graph Based on

Federal Judicial Caseload Statistics,

https://tinyurl. com/FLSAcases1990 (last

visited June 17, 2025) ...............................

Walck, Taking It All Off: Salazar v.

Butterball and the Battle over Fair

Compensation

Under

the

FLSA’s

“Changing Clothes” Provision, 89 Denv.

U. L. Rev. 549 (2012) ................................

OPINIONS BELOW

The court of appeals’ opinion (App. 1a-13a, infra)

is reported at 123 F.4th 643. The order denying

rehearing and rehearing en banc (App. 14a-15a, infra)

is unreported.

The district court’s opinion granting in part both

parties’ motions for partial summary judgment (App.

16a-107a, infra) is reported at 555 F. Supp. 3d 89. The

opinion denying Petitioner’s motion for reconsideration regarding summary judgment (App. 108a-113a,

infra) is unreported but available at 2021 WL 4215503.

The opinion denying Petitioner’s motion for judgment

as a matter of law, a new trial, or remittitur (App.

114a-148a, infra) is unreported but available at 2023

WL 7336368.

JURISDICTIONAL STATEMENT

The court of appeals entered judgment on December

19, 2024, and denied rehearing on February 20, 2025.

Justice Alito extended the deadline for this petition to

June 20, 2025. This Court has jurisdiction under 28

U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS

Relevant statutory provisions are reproduced at

App. 149a-169a, infra.

INTRODUCTION

For decades, employers and courts have struggled

with Steiner v. Mitchell, 350 U.S. 247 (1956)—an

atextual decision from a bygone era of statutory

construction. When Steiner was decided, many justices

viewed legislative history as equally important as (or

even more important than) the statutory text itself.

And Steiner is a classic of the genre. After simply

declaring the relevant text of the Fair Labor Standards

Act (FLSA) ambiguous, Steiner jumped to and relied

primarily on select remarks unearthed from admittedly “conflicting” legislative history. Were Steiner

decided today, this Court would follow a very different

approach and reach a very different result.

Aside from being wrong, Steiner has increasingly

bedeviled employers and courts. After lying relatively

dormant for decades, Steiner has become ever more

important over the past thirty years. In just the last

five or so, FLSA cases have cost employers nearly $2

billion. And as the amount of litigation has grown, so

has confusion in the lower courts, leading to multiple

circuit splits. In fact, this Court has twice tried to

provide clarity to Steiner’s creation—so-called

“integral and indispensable” activities—but the

confusion persists, as shown by this case and others.

It is difficult to overstate the burden of Steiner. The

question driving this chaos occurs in almost every

sector of the American economy: whether activities

that take place before and after the productive work

shift, such as changing clothes or showering, are

“integral and indispensable” to the employee’s

“principal activities” and thus compensable under the

FLSA. When aggregated across many thousands of

employees and multiple years, these “integral and

indispensable” activities create massive liability

risk. And that risk is exacerbated, particularly for

businesses with nationwide operations, by courts

disagreeing over how to identify and measure those

activities.

None of that should be a surprise. “[P]roblems …

arise when judges create atextual legal rules and

frameworks. Judge-made doctrines have a tendency to

distort the underlying statutory text, impose unneces-

sary burdens on litigants, and cause confusion for

courts.” Ames v. Ohio Dep’t of Youth Servs., 145 S.Ct.

1540, 1548 (2025) (Thomas, J., concurring).

This case provides an opportunity to dispel all this

confusion. The Court could just settle the question of

how to measure time employees spend conducting

“integral and indispensable” activities, an important

issue that stems from Steiner and has split the

circuits. Or, this Court could overrule Steiner and

finally end all the confusion and harm caused by the

decision’s fundamentally flawed statutory construction,

as this Court has done recently in overruling or

cabining other similar precedents. See Loper Bright

Enters. v. Raimondo, 603 U.S. 369, 396 (2024)

(overruling precedent that “cannot be squared with”

the statute’s plain text); Groff v. DeJoy, 600 U.S. 447,

468 (2023) (disavowing a statutory “gloss” that was

inconsistent with the plain text).

The petition should be granted.

STATEMENT OF THE CASE

A. Legal background

1. As relevant here, the Fair Labor Standards Act

of 1938 requires employers to pay overtime to a wide

swath of workers. 29 U.S.C. § 201 et seq. Violations

can trigger lawsuits from employees (individually or

collectively) or an enforcement action by the Secretary

of Labor. Id. §§ 215(a)(2), 216(b)-(c). Remedies include

damages (presumptively doubled as liquidated

damages), civil penalties, injunctions, and attorney’s

fees. Id. §§ 216-217.

Both liability and damages depend on the amount

of compensable “work” employees have performed.

But when passed, “the FLSA did not define ‘work’ or

‘workweek.’” Integrity Staffing Sols., Inc. v. Busk, 574

U.S. 27, 31 (2014). So in several decisions, “[t]his Court

gave those terms a broad reading.” Sandifer v. U.S.

Steel Corp., 571 U.S. 220, 225 (2014). The last—

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680

(1946)—held that “the statutory workweek includes

all time during which an employee is necessarily

required to be on the employer’s premises, on duty, or

at a prescribed workplace.” Id. at 690-691. And that

included “preliminary activities,” like changing clothes

or walking to work stations. Id. at 692-693.

2. “Congress responded swiftly” to Anderson with

the Portal-to-Portal Act of 1947 (29 U.S.C. § 251

et seq.). Busk, 574 U.S. at 32. In Congress’s view, the

FLSA had “been interpreted judicially in disregard of

long-established customs, practices, and contracts

between employers and employees,” creating “immense”

and “wholly unexpected liabilities.” 29 U.S.C. § 251(a).

Within six months of Anderson, “a flood of litigation”

(“more than 1,500 lawsuits”) had sought “nearly

$6 billion in back pay and liquidated damages for

various pre-shift and post-shift activities.” Busk, 574

U.S. at 31-32 (citing S. Rep. No. 37, 80th Cong., 1st

Sess. 2-3 (1947) (“Senate Report”)). These lawsuits

threatened “financial ruin” for employers, “excessive

and needless litigation” for courts, and “windfall

payments” for employees. 29 U.S.C. § 251(a). In sum,

Anderson threatened “the national prosperity of the

United States.” H.R. Rep. No. 71, 80th Cong., 1st Sess.

42 (1947).

To address this “emergency,” 29 U.S.C. § 251(b), the

Portal-to-Portal Act “provided two statutory remedies.”

IBP, Inc. v. Alvarez, 546 U.S. 21, 26 (2005). First,

Section 2 eliminated all pending working-time claims

that did not rely on a prior contract, custom, or

practice. 29 U.S.C. § 252(a). Second, Section 4

“narrowed” the scope of compensable activities for

future claims. Alvarez, 546 U.S. at 27.

Section 4, which would soon be addressed by Steiner,

excluded liability for:

(1) walking, riding, or traveling to and from

the actual place of performance of the

principal activity or activities which such

employee is employed to perform, and

(2) activities which are preliminary to or

postliminary to said principal activity or

activities.

29 U.S.C. § 254(a). It then defined “preliminary” and

“postliminary” activities as those that “occur either

prior to the time … at which [an] employee

commences, or subsequent to the time … he ceases,

such principal activity or activities.” Ibid. Though

mentioned separately, the traveling described in the

first paragraph plainly falls within that definition.

Section 4 thus recognizes two categories of activities:

(1) “principal activities” that the “employee is

employed to perform”; and (2) “activities which are

preliminary to or postliminary to” a principal activity.

3. Nine years later, Steiner recognized a third

category of activities: those that meet the statutory

definition of “preliminary and postliminary” activities,

but also are “integral and indispensable” to a

“principal” activity. 350 U.S. at 252-253. In Steiner,

the Secretary sued for time spent by employees of

a battery manufacturer “changing clothes at the

beginning of the shift and showering at the end.” Id.

at 248. The Secretary “concede[d] that these activities

ordinarily constitute ‘preliminary’ or ‘postliminary’

activities.” Id. at 249. But because they were

“compelled” by the nature of the work, the Secretary

claimed they were compensable as “an integrable and

indispensable part of the production of batteries.” Id.

at 248-249.

The Court agreed, holding that “the term ‘principal

activity or activities’ in Section 4 embraces all

activities which are an integral and indispensable

part of the principal activities.” Id. at 252-253. It

first asserted, without any explanation, that “[t]he

language of Section 4 is not free from ambiguity and

the legislative history of the Portal-to-Portal Act

becomes of importance.” Id. at 254. Steiner then cited

a “colloquy between several Senators” that, the Court

concluded, “demonstrates the Senate intended” to

compensate employees for all activities that “are

an integral part of and are essential to the principal

activities of the employees.” Ibid. Steiner acknowledged “some conflicting history in the House,” but

disregarded it in favor of the “more clear cut” and

“persuasive” remarks in the Senate. Ibid.

Steiner then turned to text, but not that of Section 4.

Id. at 254-255. Rather, Steiner looked to other

provisions of the FLSA and a 1947 “bulletin” from the

Department of Labor. Id. at 254-256 & n.9. It

ultimately concluded “[o]n the whole” that Congress

intended to compensate employees not just for

“principal activities,” but also for activities that are “an

integral part of and indispensable to their principal

activities.” Id. at 255.

4. For the next 40 years or so, litigation under

Steiner remained relatively sparse. But “after decades

of relative silence,” Steiner returned to the fore as

FLSA litigation “roared back to life in the late 1990’s.”

Panich & Murray, Labor & Employment Corner, Back

on the Cutting Edge: “Donning-and-Doffing” Litigation

Under the Fair Labor Standards Act, The Federal

Lawyer 14, 14 (March/April 2011) (“Panich & Murray”).1

With this “explosion of litigation,” ibid., came

confusion in the lower courts over Steiner. The Second

Circuit, for example, lamented that “authorities offer

little guidance as to the meaning of the term ‘principal

activity or activities,’ or how to distinguish noncompensable preliminary/postliminary activities.”

Reich v. N.Y. City Trans. Auth., 45 F.3d 646, 649 (2d Cir.

1995).

It found that “no clear standards” had

“emerge[d]” beyond “certain generalizations” and “the

guidance that does exist tends to be circular.” Ibid.

Another court observed that decisions applying

Steiner “have differed as to the proper test to apply, as

well as to the test results.” Aguilar v. United States,

36 Fed. Cl. 560, 566 (1996).

5. In response to this confusion, this Court has

twice sought to clarify Steiner.

In 2005, Alvarez confronted whether “integral and

indispensable” activities constitute “principal activities.”

As Steiner acknowledged—and lower courts continued

to recognize—these activities fit the statutory definition of “preliminary and postliminary” activities. E.g.,

350 U.S. at 249 (“these activities ordinarily constitute

But

‘preliminary’ or ‘postliminary’ activities”).2

See Diener, Judicial Approval of FLSA Back Wages

Settlement Agreements, 35 Hofstra Lab. & Emp. L.J. 25, 34 (2017)

(“Through the 1990s and the 2000s …, courts saw a substantial

uptick in the number of FLSA claims, a trend that continued into

subsequent decades.”).

See, e.g., Tum v. Barber Foods, Inc., 360 F.3d 274, 283

(1st Cir. 2004), aff’d in part, 546 U.S. 21 (2005) (Portal-to-Portal

Act “exempts from compensation activities which are preliminary

or postliminary … unless they are an ‘integral and indispensable

Steiner declared them compensable because they

also are “integral and indispensable” to “principal

activities.” The question in Alvarez was whether they

are not only compensable but deemed “principal

activities” themselves.

That question—which Alvarez answered in the

affirmative—mattered because of the “continuous

workday rule.” Alvarez, 546 U.S. at 28. Under that

rule, all time between the first and last “principal”

activities of the day constitutes a “continuous

workday,” during which all activities are compensable,

regardless of whether they are themselves “work.” 29

C.F.R. § 790.6(a). So if “integral and indispensable”

activities are deemed “principal” activities, they start

the “continuous workday” clock. Alvarez agreed with

that understanding, holding that “any activity that is

‘integral and indispensable’ to a ‘principal activity’ is

itself a ‘principal activity’ under § 4(a).” 546 U.S. at 37.

But Alvarez “left many questions unanswered, such

as what constitutes ‘any activity that is “integral and

indispensable.”’” Barbu, The Ubiquitous Blackberry:

The New Overtime Liability, 5 Lib. U. L. Rev. 47, 60

(Fall 2010) (quoting Alvarez, 546 U.S. at 37). In the

following years, “[l]itigants and lower courts continue[d]

to grapple” with “integral and indispensable” activities.

Alfred & Schauer, Continuous Confusion: Defining the

Workday in the Modern Economy, 26 ABA J. of Lab. &

Emp. L. 363, 363, 382 (Spring 2011); see Perez v.

Mountaire Farms, Inc., 650 F.3d 350, 381 (4th Cir.

2011) (Wilkinson, J., concurring in part) (“The case law

in this area is itself a mush ….”).

part of the principal activities’”); Alvarez v. IBP, Inc., 339 F.3d

894, 902 (9th Cir. 2003), aff’d, 546 U.S. 21 (“Not all ‘preliminary

or postliminary’ activities can go uncompensated[.]”).

So the Court intervened again in 2014, this time to

resolve disagreement over the compensability of

security screenings and also to clarify what, exactly,

the terms “integral and indispensable” mean. Busk,

574 U.S. 27. Circuit courts used conflicting tests, many

of which asked whether the activity was “necessary to

the principal work performed and done for the benefit

of the employer.” Id. at 30-31.

Because the terms “integral and indispensable” are

not found in the Portal-to-Portal Act, the Busk Court

applied principles of statutory interpretation to the

language of Steiner. See id. at 33. Looking to

dictionary definitions (including those from when

Steiner was decided), Busk held that an activity is

“integral and indispensable … if it is an intrinsic

element of [principal] activities and one with which

the employee cannot dispense if he is to perform his

principal activities.” Ibid.

In so doing, Busk rejected the Ninth Circuit’s test for

“integral and indispensable” activities. Because if the

test “could be satisfied merely by the fact that an

employer required an activity, it would sweep into

‘principal activities’ the very activities that the Portalto-Portal Act was designed to address.” Id. at 36. And

“[a] test that turns on whether the activity is for the

benefit of the employer is similarly overbroad.” Ibid.

As explained below, Section II.B.1-2, infra, these

efforts in Alvarez and Busk to salvage Steiner have

“left the law in a confused state,” with the FLSA

“routinely interpreted differently by lawyers, judges,

arbitrators, employers, and labor leaders.” Ritzman, A

State of Confusion: How the FLSA Is Failing to Ensure

A Fair Day’s Pay and How to Address It, 50 U. Tol. L.

Rev. 163, 163 (2018).

B. Factual background

The employer here is very similar to the battery

manufacturer in Steiner. Defendant-petitioner East

Penn pays thousands of hourly employees to manufacture and recycle lead-acid batteries at facilities in

Lyon Station, Pennsylvania. See App. 3a, 21a, infra.

Because many employees are exposed to lead and

other hazards, they must perform certain activities

before and after their productive shift. Id. at 3a, 21a22a. Before entering the production area, they change

into uniforms. Id. at 3a, 21a, 115a. They also don additional personal protective equipment (PPE), such as

safety glasses, earplugs, shoes, respirators, and/or hard

hats. Id. at 3a. After their shifts, uniformed employees

change back into their street clothes before leaving. Id.

at 22a. Some are also required to shower first. Ibid.

To account for these activities, East Penn compensates employees for a period at the beginning and end

of each shift. Id. at 3a, 115a-116a. Originally, East

Penn paid its employees for five minutes at the

beginning of each shift and another five minutes at the

end. Id. at 3a. In 2016, East Penn increased the

second period to ten minutes. East Penn based these

periods on the time an employee reasonably needs to

conduct these activities. See id. at 116a.

C. Procedural history

Soon after East Penn decided to increase the end-ofshift paid period, the Secretary launched a two-year

investigation into East Penn’s compensation practices.

Ibid. The Secretary then filed this lawsuit in March

2018. See ibid.

The Secretary sought back wages for 11,780 current

and former hourly employees. See id. at 4a. It argued

that East Penn was required to pay these employees

for the actual time it took them to conduct the

activities described above, rather than the reasonable

time it should have taken them. See id. at 3a-4a,

16a-18a. According to the Secretary’s expert, these

activities actually took, on average, 15.6 minutes at

the beginning of the shift and 11 minutes at the end.

Id. at 4a.

After nearly two years of discovery, both parties

moved for summary judgment. East Penn did not

dispute that the challenged activities were “integral

and indispensable” under Steiner, while expressly

preserving the argument that Steiner should be

overruled. Id. at 170a-171a. The parties disagreed

instead over whether employees should be compensated for the time these activities actually took or the

time they reasonably should have taken. Id. at 33a34a. On that issue of first impression in the Third

Circuit, the district court sided with the Secretary,

holding that actual time is the appropriate metric for

purposes of assessing liability. Id. at 43a. But the

district court left open, without further explanation,

that reasonable time could be used “in the calculation

of damages once liability is established.” Ibid.

The case proceeded to a lengthy and complex jury

trial involving approximately 60 witnesses and over

400 exhibits. Id. at 116a-117a. Evidence included

employee testimony, security-camera footage, East

Penn’s policies and procedures, a “time study” by the

Secretary’s expert, and over 12 million time records.

Id. at 117a, 175a. After two months, the district court

instructed the jury, over East Penn’s objection, to

calculate damages based on the amount of time it

actually took East Penn’s employees to conduct the

activities at issue. Id. at 139a-140a.

The jury awarded approximately $22.25 million. Id.

at 4a. East Penn renewed its objection that damages

should have been based on reasonable time. Id. at

140a. The district court disagreed. Ibid.

East Penn timely appealed, and the Third Circuit

affirmed. Id. at 3a. The court first acknowledged that

East Penn had preserved the argument that Steiner

should be overruled. Id. at 4a. It then agreed with the

district court that East Penn’s employees should be

compensated for actual time, regardless of what was

reasonable. Id. at 7a-9a. In so ruling, the Third

Circuit purported to “join” the Sixth Circuit and

“contrast[ed]” the Tenth Circuit’s “reasonable time”

approach. See id. at 9a.

The court denied East Penn’s petition for rehearing.

Id. at 15a. This petition timely followed.

REASONS FOR GRANTING THE PETITION

This Court can remediate some—indeed, all—of the

confusion and harm that continues to arise out of

Steiner’s indisputably flawed statutory construction.

At a minimum, this Court could resolve the circuit

split over how to measure time spent on Steiner’s

“integral and indispensable” activities. But this Court

also could, and should, go further by overruling Steiner.

I. This Court should resolve how time spent

on “integral and indispensable” activities

is measured.

A. The circuits are divided over whether

reasonable time or actual time is the

correct metric.

Seven circuits are split almost evenly over how to

measure time spent conducting “integral and indispensable activities” under Steiner. The First, Ninth,

and Tenth Circuits have allowed measurement based

on “reasonable time.” Tum, 360 F.3d at 283; Alvarez,

339 F.3d at 914; Reich v. IBP, Inc., 38 F.3d 1123, 1127

(10th Cir. 1994). In contrast, the Second, Fourth, and

Sixth Circuits—and now the Third—have required

“actual” time. Holzapfel v. Town of Newburgh, 145 F.3d

516, 526 (2d Cir. 1998); Mountaire Farms, 650 F.3d at

372; Brock v. City of Cincinnati, 236 F.3d 793, 802-803

(6th Cir. 2001); App. 9a, infra.

1. The First, Ninth, and Tenth Circuits

allow reasonable time.

In Reich, the Tenth Circuit held that “reasonable

time is an appropriate measure” of time spent

conducting “integral and indispensable” activities.

38 F.3d at 1127. The employees of a meat processor

spent time “putting on, cleaning, and taking off …

personal protective gear.” Ibid. But because the

employees had “considerable … discretion with regard

to the time and speed” of these activities, the Tenth

Circuit held that the “reasonable time to conduct these

activities, … rather than the actual time taken” was

“an appropriate measure.” Ibid.

In its decision in Alvarez, the Ninth Circuit

expressly joined the Tenth. 339 F.3d 894. There, the

district court held that the same meat processing

company from Reich must pay for time spent donning,

doffing, and cleaning certain personal protective gear.

Id. at 901. In doing so, “the district court adopted—as

the Tenth Circuit did in Reich—a compensation

measure based on a ‘reasonable’ quantification of

plaintiff ’s work time.” Id. at 914. The Ninth Circuit

affirmed, holding that “[t]he use of reasonable time”

was permitted in cases, like the one before it, where

the tasks at issue were more “uniform” and “subject to

dilatoriness.” Id. at 914-915.

Finally, the First Circuit in Tum found “no error” in

an instruction directing the jury to consider

“reasonable” and not “actual” time. The jury had been

instructed “not to decide the actual time it may take

any individual employee to perform [the challenged]

activities,” but instead to “decide the amount of time

[that] is reasonably required by a reasonably diligent

associate or employee to don and doff the required

clothing and equipment.” 360 F.3d at 283 n.7. Quoting

this instruction, the court held that “the jurors were

clearly apprised of their duty,” and had not been

“confused or misled.” Id. at 283.

2. The Second, Fourth, and Sixth Circuits

require actual time.

In contrast to the above, the Second Circuit in

Holzapfel reversed a district court for instructing the

jury to calculate the time “reasonably necessary” to

conduct “integral and indispensable” activities performed by K-9 officers caring for their dogs.

145 F.3d at 523. The district court had “relied upon

Reich … to justify the ‘reasonableness’ element” in its

instructions. Id. at 526. But the Second Circuit

disagreed, because “the word ‘reasonable’ is not found

in the [FLSA’s] definition of ‘work’” or the phrase

“integral and indispensable.” Id. at 523.

The Sixth Circuit adopted this analysis in Brock,

which also involved time spent caring for police

canines. 226 F.3d at 804. Acknowledging the circuit

split, the Sixth Circuit noted that the Tenth Circuit

had applied a “reasonable time” standard to prevent

overcompensating employees “for tasks on which they

could spend an inordinate amount of time,” while

“[t]he Second Circuit rejected the ‘reasonable time’

standard.” Id. at 802. The court then expressly sided

with the Second Circuit, holding that “[c]ourts should

not inquire into the reasonableness of the amount of

work employees actually performed” and should

“instead measure, if possible, how much time the

officers spent.” Id. at 803.

Finally, the Fourth Circuit also required “actual

time” in its Mountaire Farms decision. The employer

had urged “that compensable time instead should have

been calculated by adding together the minimum

amounts of time expended by the best-performing

employee in completing each activity.” 650 F.3d at 372.

The Fourth Circuit found “no merit in this argument,”

holding that compensation was properly based on “the

amount of time that employees … actually spend

donning and doffing.” Ibid.

3. The Third Circuit deepens the split

by requiring actual time.

In the decision below, the Third Circuit joined the

courts rejecting “reasonable time” and holding that

“the correct measure is actual time.” App. 7a, infra; see

id. at 9a (“join[ing] the Sixth Circuit in basing liability

on the actual time that workers spend”). Echoing the

Second Circuit, the Third Circuit reasoned that “[t]he

Act’s text focuses on actual time.” Id. at 8a.

In so doing, the Third Circuit attempted to minimize

the split by describing the Tenth Circuit in Reich as

having allowed “reasonable time” only in the context

of calculating damages, and not for purposes of

liability. Id. at 9a. But this naked effort to “cert-proof ”

the decision fails for several reasons.

First, other courts do not similarly downplay the

split. For example, neither the Second nor Sixth

Circuit—both of which expressly rejected Reich—so

qualified their disagreement with the Tenth Circuit.

Likewise, the Eighth Circuit—which has itself yet to

weigh in—observed without caveat that the “circuits

are divided” on this question. Lopez v. Tyson Foods,

Inc., 690 F.3d 869, 878 (8th Cir. 2012) (contrasting

the Ninth and Tenth Circuits with the Second and

Sixth Circuits).3

Second, while the Third Circuit purported to distinguish between calculating liability and calculating

damages, it didn’t apply that distinction in practice.

Instead, it affirmed the district court’s judgment

“across the board,” App. 4a, infra, which includes the

use of “actual time” for both liability and damages, see

id. at 3a-4a, 7a (discussing damages award and “actual

time” jury instruction).

See Barron, “A Fair Day’s Pay for A Fair Day’s Work”: Why

Congress Should Amend the Fair Labor Standards Act to Include

an Actual Time Test for Retroactive Damages, 99 Iowa L. Rev.

1297, 1309 (2014) (“[C]ircuit courts are split over how to calculate

retroactive damages ….”).

B. Reasonable time is the correct metric.

The Third Circuit not only deepened this circuit

split; it also picked the wrong side. Reasonable time is

the proper metric for “integral and indispensable”

activities.

This issue was settled by Anderson nearly 80 years

ago. 328 U.S. 680. After deeming pre-shift walking

time compensable, Anderson limited damages “to the

minimum time necessarily spent” on that activity. Id.

at 692. As Anderson explained, “[i]t would be unfair

and impractical” to compensate employees for actual

time, because many “took roundabout journeys and

stopped off en route for purely personal reasons.” Ibid.

Anderson also reasoned that unlike actual time,

“precise calculation of the minimum walking time is

easily obtainable.” Ibid. This aspect of Anderson was

unaffected by the Portal-to-Portal Act—which doesn’t

address how to pay for activities not covered by

contract, custom, or practice—and therefore still controls.

Consistent with Anderson, the Department of Labor

itself long agreed that reasonable time is an

appropriate metric. As early as 1956, it allowed

employers to provide “given amounts of time” for

“clothes changing and wash-up activities,” so long as

“the time set is reasonable in relation to the actual

time required.” App. 178a, infra. The Department

stood by this position for decades. See, e.g., id. at

181a (1996 Field Operations Handbook); U.S. Br. 29,

Alvarez, supra (No. 03-1238) (arguing that lower

courts correctly “awarded compensation for a

‘reasonable’ period of walking time,” consistent with

the “continuous workday” principle).

The Third Circuit’s reasoning to the contrary is

not persuasive. It did not even acknowledge the

Department’s statements above. And while the Third

Circuit acknowledged that Anderson “required

reasonable time instead of actual time,” its basis for

ignoring that conclusion does not stand up. App. 8a,

infra. The court reasoned that Anderson’s holding

applied to a specific activity—pre-shift walking time—

that “no longer counts as work” under the Portal-toPortal Act. Ibid. But that misses the point, which is

that in changing what activities are compensable, the

Portal-to-Portal Act did not affect Anderson’s logic

about how to measure the time spent on such work. To

that, the Third Circuit provides no response.

The decision below also asserted that “[t]he Act’s

text focuses on actual time,” citing 29 U.S.C.

§§ 206(a)(1), 207(a)(1), 211(c). App. 8a, infra. But

those provisions say nothing about actual time.4

Instead, the only references to “actual time” came from

the Third Circuit’s own dicta in decisions on other

FLSA issues. See id. at 8a-9a.

See 29 U.S.C. § 206(a)(1) (“Every employer shall pay each of

his employees … wages at the following rates”); id. § 207(a)(1)

(“Except as otherwise provided …., no employer shall employ any

of his employees … for a workweek longer than forty hours unless

such employee receives compensation for his employment in

excess of the hours above specified at a rate of not less than one

and one-half times the regular rate at which he is employed.”); id.

§ 211(c) (“Every employer … shall make … such records of the

persons employed by him and of the wages, hours, and other

conditions and practices of employment … by him ….”).

II. Alternatively, this Court should overrule

Steiner.

This Court could just resolve the circuit split above.

Or, it could moot that split and dispel much broader

confusion by overruling Steiner altogether.

“Stare decisis is not an inexorable command.” Loper

Bright Enters. v. Raimondo, 603 U.S. 369, 407 (2024)

(citation omitted). When deciding whether to apply it,

this Court considers several factors, including “the

quality of [a precedent’s] reasoning, the workability of

the rule it established, and reliance on the decision.”

Ibid. (citation omitted). Each of these factors “weigh[s]

in favor of letting [Steiner] go.” Ibid.

A. Steiner was wrongly decided.

Steiner “was not just wrong,” but “exceptionally ill

founded.” Knick v. Twp. of Scott, 588 U.S. 180, 203

(2019). It is a textbook example of the “bygone era of

statutory construction” when the Court “inappropriately resort[ed] to legislative history before consulting

the statute’s text and structure.” Food Mktg. Inst. v.

Argus Leader Media, 588 U.S. 427, 428 (2019) (citation

omitted).

1. Steiner added words to the plain text

of Section 4(a).

As this Court now recognizes, “[s]tatutory construction must begin with the language employed by

Congress.” Milner v. Dep’t of Navy, 562 U.S. 562, 569

(2011) (citation omitted). “[T]he ordinary meaning of

that language accurately expresses the legislative

purpose.” Ibid.

Here, the text recognizes two types of activities.

A “principal activity” is that “which such employee is

employed to perform.” 29 U.S.C. § 254(a)(1). And a

“preliminary” or “postliminary” activity occurs “prior

to” or “subsequent to” the first or last “principal

activities” of the day. Id. § 254(a). The text says

nothing about activities that are “integral and

indispensable” to a principal activity.

Steiner’s task should have been easy. The activities

at issue—changing clothes and showering—occurred

“prior to” and “subsequent” to the employees’ productive work and thus meet the statutory definition of

preliminary and postliminary activities. Indeed, the

Government conceded that these activities “ordinarily

constitute ‘preliminary’ or ‘postliminary’ activities.”

Steiner, 350 U.S. at 249. Conversely, these activities

fall outside the definition of “principal” activities—the

employees are not “employed to perform” them. 29

U.S.C. § 254(a)(1).

That should have been the

beginning and end of the analysis.

But Steiner skipped right over the text. With no

explanation, it declared the Portal-to-Portal Act “not

free from ambiguity.” 350 U.S. at 254. And then it

assigned primary “importance” to “conflicting [legislative]

history,” and grafted words plucked from a single floor

debate—namely, “integral” and “indispensable”—onto

the text of Section 4. Ibid.; see also id. at 256 (quoting

Senator Cooper).

Everything about that was wrong. For starters,

Steiner’s uncritical invocation of “ambiguity” abdicated

the Court’s fundamental duty to say what the law is.

Loper Bright, 603 U.S. at 400 (“[W]hen faced with a

statutory ambiguity,” courts “do not throw up their

hands.”). Steiner then compounded that error by

turning to “floor statements by individual legislators,”

which “rank among the least illuminating forms of

legislative history.” N.L.R.B. v. SW Gen., Inc., 580 U.S.

288, 307 (2017); see United States v. Trans-Missouri

Freight Ass’n, 166 U.S. 290, 318 (1897) (“[D]ebates in

congress are not appropriate sources of … the meaning

of the language of a statute ….”).

Worse still, Steiner “allow[ed] ambiguous legislative

history to muddy clear statutory language.” Milner,

562 U.S. at 572.

Steiner itself acknowledged

“conflicting” statements in the House. 350 U.S. at 254

& n.6. And those statements—contrary to the ones in

the Senate—confirm that no preliminary or postliminary activities are supposed to be compensable (absent

contract, custom, or practice), even “the laying out of

work” to be done “in the next few minutes.” 93 Cong.

Rec. 4388-4389 (1947).

Ultimately, Steiner committed the error present “in

most incorrect interpretations of statutes”—it “add[ed]

words to the law to produce what [wa]s thought to be

a desirable result.” E.E.O.C. v. Abercrombie & Fitch

Stores, Inc., 575 U.S. 768, 774 (2015). That, however,

“is Congress’s province.” Ibid.; see also Muldrow v.

City of St. Louis, 601 U.S. 346, 347 (2024) (refusing to

“add words … to the statute Congress enacted”).

2. Steiner is logically incoherent.

Were augmenting the statutory text not error

enough, Steiner is also logically incoherent.

Steiner’s holding has been understood as deeming

certain preliminary or postliminary activities both

“integral and indispensable to principal activities” and

“themselves principal activities.” Alvarez, 546 U.S. at

33. But that isn’t possible. One thing cannot be

defined in relation to another—A is “integral and

indispensable” to B—and also be the other. If they’re

related, they can’t also be the same.

But that’s just the tip of the iceberg. Put fully in

context, Steiner makes even less sense. The statute

creates two categories—A (“preliminary and postliminary activities”) and B (“principal activities”)—which

are defined in a mutually exclusive way. A are those

activities “which occur either prior to the time on

any particular workday at which [an] employee

commences, or subsequent to the time on any

particular workday at which he ceases,” B. 29 U.S.C.

§ 254(a). So A≠B. Steiner then says that sometimes

activities in A have a particularly close relationship to

(“are integral and indispensable to”) activities in B.

And when that is so, according to Steiner, somehow A=B.

This logical incoherence creates another problem:

the goalposts for compensability can shift indefinitely,

such that B eventually swallows A. This Court

recognized as much in Alvarez. As noted, Alvarez held

that donning protective gear was both “integral and

indispensable” to a “principal” activity (processing

meat), and also a “principal” activity itself. But in that

case, what about the time spent waiting to receive this

gear from the employer? 546 U.S. at 40. If this

“predonning waiting time” is “integral and indispensable to the principal activity of donning,” is waiting

now a “principal activity” too? Ibid. If so, then what

about pre-waiting time, like walking to the changing

room? In other words, why can’t a plaintiff just keep

stretching the line of compensability from one

“integral and indispensable” activity to another, until

B subsumes A completely?

As Alvarez recognized, the only way to impose a

“limiting principle” was to effectively establish two

tiers of principal activities.

Id. at 41. To be

compensable, an activity must be “integral and

indispensable” to the “productive activity” that the

employee was hired to perform. Id. at 42 (emphasis

added). If an activity is “two steps removed from the

productive activity”—i.e., integral and indispensable

to another activity that is integral and indispensable

to the productive activity—it is not compensable. Ibid.

Because “predonning waiting time” was “two steps

removed from the productive activity,” it was not

compensable. Ibid.

But the statute only recognizes one type of “principal

activity”: that which the worker is “employed to

perform.” 29 U.S.C. § 254(a). So what Alvarez really

did was create a second “atextual legal rule” to

mitigate the “problems … aris[ing]” from the first, and

thereby further “distort the underlying statutory text.”

Ames, 145 S.Ct. at 1548 (Thomas, J., concurring). We

are now completely through the looking glass.

3. Steiner’s limited textual analysis is

not convincing.

After cherry-picking legislative history, Steiner did

turn to other textual provisions. But that does not

absolve its failure to consider the text of Section 4(a).

In any event, its reasoning regarding the other

provisions is unpersuasive.

First, Steiner asserted that if Congress had wanted

to exclude future liability for “integral and indispensable” activities, then “the very different provisions of

Sections 2 and 4 would have been unnecessary”

because “Section 2 could have been given prospective

as well as retroactive effect.” 350 U.S. at 255-256. But

making Section 2 “prospective as well as retroactive”

would have gone too far, precisely because these

provisions are “very different.” Section 2 broadly

eliminates all pending claims not based on contract,

custom, or practice. 29 U.S.C. § 252(a). By contrast,

Section 4 narrows the scope of future claims not based

on contract, custom, or practice—to only those based

on “principal” activities. See pp. 4-5, supra. If Section

2 were made prospective, such “principal” activities

would not be compensable. That would restrict future

claims more than Congress wanted, which is exactly

why Congress made these provisions “very different”

to begin with.

Second, Steiner was also wrong in reasoning that

unless “integral and indispensable” activities were

deemed compensable under Section 4, Section 3(o) of

the FLSA would be impermissibly redundant. 350 U.S.

at 255.5 Perhaps, among other reasons, Congress

wanted to be “doubly sure.” Barton v. Barr, 590 U.S.

222, 239 (2020) (citing Wis. Cent. Ltd. v. United States,

590 U.S. 222, 281-282 (2020); Marx v. Gen. Rev. Corp.,

568 U.S. 371, 385 (2013); Lamie v. U.S. Trustee, 540 U.S.

526, 536 (2004)); see also Rimini St., Inc. v. Oracle

USA, Inc., 586 U.S. 334, 346 (2019) (“Sometimes the

better overall reading of the statute contains some

redundancy.”). And that would certainly make sense

here, where Congress was addressing an “emergency”

that threatened to cause “financial ruin” and destroy

“the national prosperity of the United States.” See

p. 4, supra.

Indeed, Congress made at least one other provision

in the Portal-to-Portal Act redundant. It specifically

excluded travel “to and from the actual place of

performance of the principal activity,” even though this

same activity is also excluded as “preliminary or

Section 3(o) allows employers and unions to “exclude[] any

time spent in changing clothes or washing at the beginning or end

of each workday” from compensated hours through a collectivebargaining agreement, custom, or practice. 29 U.S.C. § 203(o).

postliminary.” See 29 U.S.C. § 254(a)(1)-(2). Since

Congress deliberately used a belt-and-suspenders

approach in Section 4, it would come as no surprise to

find the same approach in Section 3(o), too.6

Finally, Steiner’s reliance on Section 16(c) of the

1949 Amendments is a model of begging the question.

Section 16(c) preserved prior regulations by the

Secretary, but only if they were not “inconsistent with”

the FLSA, including as amended by the Portal-toPortal Act. 29 U.S.C. § 208 note (1952 ed.). In relying

on Section 16(c), Steiner simply assumed that the

regulation at issue, which discussed “integral and

indispensable” activities, was consistent with the

Portal-to-Portal Act. See 350 U.S. at 255 & n.8 (citing

29 C.F.R. § 790.8). It wasn’t, for the reasons just

explained.

4. Congress has not implicitly ratified

Steiner.

While Congress has not overruled Steiner, it hasn’t

ratified it, either. As this Court has long warned, “[i]t

is at best treacherous to find in Congressional silence

alone the adoption of a controlling rule of law.” Zuber

v. Allen, 396 U.S. 168, 185 n.21 (1969); see also, e.g.,

Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S.

405, 424 (2017) (“[C]ongressional inaction lacks persuasive significance in most circumstances.”) (citation

omitted). Indeed, “[t]his Court has many times

reconsidered statutory constructions that have been

passively abided by Congress,” Zuber, 396 U.S. at 185

n.21—including just last year in Loper Bright. See

Monroe v. Pape, 365 U.S. 167, 221 (1961) (Frankfurter,

See 95 Cong. Rec. 11433 (1949) (Rep. Lucas) (acknowledging

that Section 3(o) was “not … necessary” because “[t]he Portal-toPortal Act was intended to cover just such situations”).

J., dissenting) (“Decisions involving statutory construction, even decisions which Congress has persuasively declined to overrule, have been overruled

here.”). And for good reason: “Congressional inaction

frequently betokens unawareness, preoccupation, or

paralysis.” Zuber, 396 U.S. at 185 n.21. In short,

“Congressional inaction cannot amend a duly enacted

statute.” Patterson v. McLean Credit Union, 491 U.S.

164, 175 n.1 (1989).

Congress’s silence is particularly uninformative

here, where Steiner spent “decades” in “relative

silence,” before “roar[ing] back to life” starting in the

late 1990’s. Panich & Murray 14. By the time Steiner

was dusted off the shelf, Congress had reconstituted

and entered a different political era.

Finally, Congress shouldn’t have to correct this

Court twice. It did so once with the Portal-to-Portal

Act, after Anderson created “an avalanche of unexpected

claims,” Senate Report 41, and risked “financial ruin”

for employers nationwide, 29 U.S.C. § 251(a). In doing

so, Congress could not have more plainly distinguished

between “principal” activities and “preliminary and

postliminary” ones. Id. § 254(a). This Court should not

“wait helplessly for Congress to correct [Steiner’s]

mistake.” Loper Bright, 603 U.S. at 411.

B. Steiner is not administrable.

Aside from being wrong, Steiner has been anything

but administrable since its resurgence.

1. Steiner is inherently difficult to

apply.

The difficulty with applying Steiner starts with the

decision itself. As one court put it, the notion that

principal activities include those activities “integral

and indispensable” to principal activities is “circular.”

N.Y. City Trans., 45 F.3d at 649; see Section II.A.2, supra.

And as time came to show, the meaning of “integral

and indispensable” is open to substantial, reasonable

debate. See, e.g., Mountaire Farms, 650 F.3d at 365

(“In contrast [to other circuits], the Second Circuit has

interpreted the holding in Steiner more narrowly.”).

That is why this Court has stepped in twice already,

most recently with Busk in 2014. See pp. 7-9, supra.

But Busk only highlighted the inherent challenges

with Steiner.

Since the terms “integral” and

“indispensable” are not found in the statute, Busk was

forced to apply dictionary definitions to the language

in Steiner’s opinion—something this Court has

repeatedly criticized. E.g., Brown v. Davenport, 596

U.S. 118, 141 (2022) (“This Court has long stressed

that the language of an opinion is not always to be

parsed as though we were dealing with the language

of a statute.”) (citation omitted).

Furthermore, Busk warned that Steiner’s malleable

standard could be read to “sweep into ‘principal

activities’ the very activities that the Portal-to-Portal

Act was designed to address.” 574 U.S. at 36. Indeed,

“[b]efore … Busk, courts routinely decided the

integral-and-indispensable issue by asking these two

questions: whether the employer required the activity

or whether the activity benefited the employer.”

Aguilar v. Mgmt. & Training Corp., 948 F.3d 1270,

1276 n.3 (10th Cir. 2020). But that is precisely the

same broad definition of “work” that Congress

overruled with the Portal-to-Portal Act. See Tenn.

Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S.

590, 598 (1944) (defining “work” as “physical or mental

exertion … controlled or required by the employer and

pursued necessarily and primarily for the benefit of

the employer and his business”).

Perhaps unsurprisingly, even after Busk, lower

courts continue to see Steiner as “abstract,” “murk[y],”

“fact-intensive,” and “not amenable to bright-line

rules.” Tyger v. Precision Drilling Corp., 78 F.4th 587,

592 (3d Cir. 2023), cert. denied, 144 S.Ct. 2604 (2024);

see Perez v. City of New York, 832 F.3d 120, 124 (2d Cir.

2016) (“[T]his standard is markedly fact-dependent

….”); Llorca v. Sheriff, Collier Cnty., 893 F.3d 1319,

1324 (11th Cir. 2018) (“This inquiry is fact-intensive

and not amenable to bright-line rules.”).

2. Steiner continues to cause conflict

and confusion in the lower courts.

The lower courts are not just confused; they continue

to be divided in a variety of ways. Initially, they still

disagree over how to apply the “integral and indispensable” test. And they further disagree on subsequent subsidiary issues, such as who decides

whether an activity is “integral and indispensable,”

and how time spent on such activities should be

measured, as discussed earlier.

a. To start, circuit courts dispute whether Busk

materially changed the test for identifying “integral

and indispensable” activities. Two circuits continue to

rely on prior circuit-level precedent that employs

factors Busk expressly rejected—specifically, whether

an employer “required an activity” and “whether the

activity is for the benefit of the employer.” 574 U.S. at

36-37. The Second Circuit still holds that the more an

activity “is undertaken for the employer’s benefit,” and

“the less choice the employee has in the matter,” “the

more likely such work will be found to be

compensable.”

Perez, 832 F.3d at 124 (citation

omitted). And the Third Circuit says that its current

test “mirrors” a similar pre-Busk case. Precision

Drilling, 78 F.4th at 594 (citing Franklin v. Kellogg Co.,

619 F.3d 604, 619-620 (6th Cir. 2010)).

By contrast, the Fifth, Ninth, and Tenth Circuits

understand Busk as a sea-change that washed away

these prior tests. The Tenth Circuit “disclaim[s]

reliance” on any “pre-Busk cases that turned on these

now-disapproved rationales.” Aguilar, 948 F.3d at

1276 n.3 (citations omitted). The Fifth Circuit likewise

refuses to rely on prior cases that “focus[] on whether

[the activity] primarily benefits the employer,” since

those cases “were all decided prior to Busk.” Bridges v.

Empire Scaffold, L.L.C., 875 F.3d 222, 227 (5th Cir.

2017). So, too, the Ninth. See Balestrieri v. Menlo Park

Fire Prot. Dist., 800 F.3d 1094, 1101 (9th Cir. 2015)

(“Under [Busk], it is not enough … that the employer

requires it and it is done for the benefit of the

employer.”).

b. Circuit courts also continue to disagree over

how to interpret “integral and indispensable” in the

common context of “donning and doffing” PPE, yielding

a “problematic circuit split.” Walck, Taking It All

Off: Salazar v. Butterball and the Battle over Fair

Compensation Under the FLSA’s “Changing Clothes”

Provision, 89 Denv. U. L. Rev. 549, 557 (2012). Before

Busk, the Second Circuit had held that this activity is

compensable if, and only if, it “protects against

workplace dangers that transcend ordinary risks.”

Gorman v. Consol. Edison Corp., 488 F.3d 586, 593

(2d Cir. 2007). But multiple circuits rejected this

“narrow” test, and employed broader multi-factored

tests instead. Mountaire Farms, 650 F.3d at 365; see,

e.g., Franklin, 619 F.3d at 619 (holding that the Second

Circuit interpreted Steiner too “narrowly,” and siding

with the Ninth and Eleventh Circuits).

Busk did not resolve this conflict. The Second

Circuit has now doubled down on its prior test. Perez,

832 F.3d at 125 (applying Gorman). And the Third

Circuit has joined the Fourth and others in rejecting

that test. Precision Drilling, 78 F.4th at 594 (citing

Mountaire Farms, 650 F.3d at 365; Franklin, 619 F.3d

at 619). This growing conflict has prompted several

petitions to this Court. See Pet. for Cert., Precision

Drilling Co. v. Tyger, No. 23-654; Pet. for Cert.,

Mountaire Farms v. Perez, No. 11-497.

c. Even after courts decide what standard to apply,

there is conflict over secondary questions, too. As

already discussed, the circuits are split over how to

measure time spent on “integral and indispensable”

activities. See Section I.A, supra.

Courts also appear confused regarding who should

decide whether an activity is “integral and indispensable.” This Court addressed this matter more than 40

years ago—this “is a question of statutory construction

that must be resolved by the courts.” Barrentine v.

Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 738 n.13

(1981). Nevertheless, circuits have applied “different

standards,” with some courts treating this as a

“question of fact.” Holzapfel, 145 F.3d at 521 (citations

omitted); see also, e.g., Lopez v. Tyson Foods, Inc., Civ.

No. 8:06-cv-459, 2007 WL 1291101, at **3-4 (D. Neb.

Mar. 20, 2007) (deeming question of “whether [donning

and doffing] activities are an integral and indispensable part of the work requirements” as a “factual

issue”); Nichols v. City of Chicago, 789 F. Supp. 1438,

1441 (N.D. Ill. 1992) (“Whether an activity is

preliminary or postliminary to a principal activity is a

question of fact.”).

Courts also disagree when assessing whether “integral

and indispensable” activities are “de minimis”—

another area where caselaw is “a mush.” Mountaire

Farms, 650 F.3d at 381 (Wilkinson, J., concurring in

part). For example, some courts consider whether the

“total number of minutes claimed by all plaintiffs” is

de minimis. Perry v. City of New York, 78 F.4th 502,

532 n.25 (2d Cir. 2023) (citing Ninth and Tenth Circuit

decisions); see App. 10a, infra (holding that the

entire $22.5 million award was not “de minimis”). By

contrast, other courts conduct “a plaintiff-by-plaintiff

inquiry” instead. Perry, 78 F.4th at 532 n.25.

C. Steiner confers

interests.

minimal

reliance

Finally, there are minimal reliance interests at

stake. “Preliminary or postliminary” activities—

whether integral and indispensable or not—are still

compensable by agreement. 29 U.S.C. § 254(b)(1).

That is, and has always been, one key way the statute

accommodates the policy concern that seemingly drove

Steiner. Congress determined that while principal

activities must be compensated, the marketplace can

better decide which “preliminary or postliminary”

tasks should also be compensable for any given job,

and how much employers should pay for such

activities. Employers can compete for workers by

offering to pay for such activities. Or, unions can

negotiate on the workers’ behalf. Ibid. In other

words, these issues “are properly presented to the

employer at the bargaining table, see 29 U.S.C.

§ 254(b)(1), not to a court in an FLSA claim.” Busk,

574 U.S. at 37.

Worker compensation remains amply protected in

other ways too. Employers must still pay for all

preliminary or postliminary activities made compensable by “custom or practice.” 29 U.S.C. § 254(b)(2).

And states remain free to require compensation for

preliminary and postliminary activities. See, e.g., id.

§ 218(a).

Lastly, and in any event, Steiner has primarily

helped plaintiffs’ attorneys, not workers. As Judge

Posner once explained, forcing employers to pay for

“preliminary or postliminary” activities makes them

“less willing to pay … a high wage” for the employees’

actual work. Sandifer v. U.S. Steel Corp., 678 F.3d 590,

594 (7th Cir. 2012), aff ’d, 571 U.S. 220. Employers

therefore “push hard to reduce the hourly wage so that

[their] overall labor costs do not rise.”

Ibid.

Accordingly, successful plaintiffs often receive only a

one-time “windfall” payment. See id. at 598 (quoting

29 U.S.C. § 251(a)).

And that “windfall” can also harm the workers’ “own

long-term interests.” Ibid. Many industries currently

harmed by Steiner are “international and highly

competitive,” meaning they could ultimately go “where

so much American manufacturing has gone in recent

years—abroad.” Ibid. In short, many of Steiner’s costs

to employers are “borne ultimately by the workers.”

Id. at 597.

* * *

This Court should return to the plain text of the

Portal-to-Portal Act, which distinguishes “preliminary

or postliminary” activities from “principal” ones.

Courts need not, and should not, further undertake the

judge-made question whether a preliminary or

postliminary activity is “integral and indispensable” to

a principal activity.

III. This case is an ideal vehicle for resolving

these important questions.

A. “Integral and indispensable” activities

are now profoundly important.

In recent decades, the FLSA has seen an “explosion

in litigation.” Panich & Murray 14. From 1990

to 2014, the number of FLSA lawsuits increased by

nearly 650%.7 And the amounts at stake have

skyrocketed too. Between 2021 and 2024 alone, over

3,000 damages awards were entered in FLSA cases,

totaling more than $1.9 billion,8 much of it attributable to Steiner. See, e.g., The Fair Labor Standards

Act: Hr’g Before the H.R. Subcomm. on Workforce

Protections, 112th Cong., 1st Sess., Serial No. 112-33,

p. 26 (2011) (“One particularly intense area of litigation has concerned the ‘donning and doffing’ of

protective clothing.”).

And then there’s the cost of uncertainty. Circuit

splits and unpredictable litigation outcomes hinder

employers who conduct business nationwide, or even

Seyfarth Shaw LLP, FLSA Cases 1990, 1993-1999, 20002014, Graph Based on Federal Judicial Caseload Statistics,

https://tinyurl.com/FLSAcases1990 (last visited June 17, 2025);

see also Bruner, Toiling in Factory and on Farm: An EmployerFriendly Approach to the Compensability of Donning and Doffing

Activities Under the “FLSA,” 65 Clev. St. L. Rev. 427, 428 (2017)

(noting that FLSA lawsuits “increased more than 300%” between

2007 and 2017).

Lex Machina Legal Analytics (employment cases, FLSA case

tag, pending between 2021 and 2024), https://law.lexmachina.

com (last accessed June 17, 2025); see also Seyfarth Shaw LLP,

2024 FLSA Litigation Metrics & Trends 15, https://tinyurl.com/

FLSAfilings2024 (FLSA filings 2014-2024) (last visited June 17,

2025) (noting that around 750 federal collective-action lawsuits

settled during this period for more than $1.2 billion).

across circuit lines. Such employers must often

conform to the strictest obligations, handicapping

them when compared to local competitors.

Finally, “integral and indispensable” activities are

prevalent in countless sectors of the American

economy. For example, workers in a wide variety of

industries don and doff uniforms or PPE. See, e.g.,

Sandifer, 571 U.S. 220 (steel workers); Perez, 832 F.3d

120 (park rangers); Gorman, 488 F.3d 593 (nuclear

power plant employees); Precision Drilling, 78 F.4th

643 (oil-rig workers); Mountaire Farms, 650 F.3d 350

(meat processors); Von Friewalde v. Boeing Aerospace

Operations, Inc., 339 Fed. Appx. 448 (5th Cir. 2009) (per

curiam) (airline employees); Franklin, 619 F.3d 604

(frozen food processors); Musch v. Domtar Indus., Inc.,

587 F.3d 857 (7th Cir. 2009) (paper mill workers);

Balestrieri, 800 F.3d 1094 (firefighters); Aguilar, 948

F.3d 1270 (prison guards); Llorca, 893 F.3d 1319 (police

officers). Others spend time “booting up and shutting

down their computers.” E.g., Cadena v. Customer

Connexx LLC, 51 F.4th 831 (9th Cir. 2022); see also

Peterson v. Nelnet Diversified Sols., LLC, 15 F.4th 1033

(10th Cir. 2021). All these industries, and many more,

are directly burdened by Steiner.

B. This case is the right vehicle.

This case is also an ideal vehicle for resolving the

questions presented. Both questions are purely legal.

And both were properly preserved, as the decisions

below acknowledged. App. 4a, 7a, infra; see id. at 33a34a. Indeed, this is the Court’s first real opportunity

to overrule Steiner. It didn’t have that option in

Alvarez or Busk. See Alvarez, 546 U.S. at 523

(“Moreover, IBP has not asked us to overrule Steiner.”);

Pet. for Cert. i, Busk, supra (No. 13-433). It does now.

Both questions are also material to the outcome.

The second question is case-dispositive. Without

Steiner, East Penn’s employees would not be entitled

to additional compensation for the preliminary and

postliminary activities at issue (beyond what East

Penn previously provided). East Penn’s employees are

not represented by any union, and the Secretary has

not argued (and could not argue) that additional pay

is required under any contract, custom, or practice.

See 29 U.S.C. § 254(b)(1). Further, resolution of the

first question could require reversal of the rulings

below on both liability and damages.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

MICHAEL J. MUELLER

EVANGELINE C. PASCHAL

HUNTON ANDREWS

KURTH LLP

2200 Pennsylvania Ave. NW

Washington, DC 20037

ELBERT LIN

Counsel of Record

DAVID M. PARKER

DAVID N. GOLDMAN

HUNTON ANDREWS

KURTH LLP

Riverfront Plaza

East Tower

951 East Byrd Street

Richmond, VA 23219-4074

(804) 788-8200

elin@huntonAK.com

Counsel for Petitioner

June 20, 2025

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: OPINION, U.S. Court of Appeals

for the Third Circuit (December 19, 2024) .........

APPENDIX B: ORDER, U.S. Court of Appeals

for the Third Circuit (February 20, 2025) ..........

14a

APPENDIX C: MEMORANDUM, U.S. District

Court for the Eastern District of Pennsylvania

(August 17, 2021) .................................................

16a

APPENDIX D: MEMORANDUM, U.S. District

Court for the Eastern District of Pennsylvania

(September 15, 2021) ........................................... 108a

APPENDIX E: MEMORANDUM, U.S. District

Court for the Eastern District of Pennsylvania

(November 7, 2023).............................................. 114a

APPENDIX F: 29 U.S.C.A. § 203 ........................ 149a

APPENDIX G: 29 U.S.C.A. § 251 ....................... 160a

APPENDIX H: 29 U.S.C.A. § 252 ....................... 163a

APPENDIX I: 29 U.S.C.A. § 254 ......................... 166a

APPENDIX J: 29 U.S.C. § 208 note (1952 ed.).. 169a

APPENDIX K: EAST PENN’S OPPOSITION

TO PLAINTIFF’S MOTION FOR PARTIAL

SUMMARY JUDGMENT, U.S. District Court

for the Eastern District of Pennsylvania (Feb.

19, 2020) ............................................................... 170a

APPENDIX L: PLAINTIFF’S TRIAL BRIEF

IN SUPPORT OF MURRAY SUMMARIES

AND DEMONSTRATIVES, U.S. District Court

for the Eastern District of Pennsylvania (Apr.

5, 2023) ................................................................. 172a

APPENDIX TABLE OF CONTENTS—Continued

Page

APPENDIX M: OPINION LETTER, U.S. Dep’t

of Labor (April 20, 1956) ..................................... 177a

APPENDIX N: FIELD OPERATIONS

HANDBOOK, Dep’t of Labor Wage and Hour

Division (September 19, 1996), §§ 31b-31b02 .... 180a

APPENDIX A

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

————

Nos. 24-1046, 24-1059

————

SECRETARY, UNITED STATES DEPARTMENT OF LABOR,

Cross-Appellant (No. 24-1059)

EAST PENN MANUFACTURING COMPANY, INC.,

Appellant (No. 24-1046)

————

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 5:18-cv-01194)

District Judge: Honorable Gene E.K. Pratter

————

Argued: September 23, 2024 (No. 24-1046)

Submitted: September 23, 2024 (No. 24-1059)

Before: KRAUSE, BIBAS, and AMBRO,

Circuit Judges

————

(Filed: December 19, 2024)

————

Michael J. Mueller

Evangeline C. Paschal

Perie Reiko Koyama

HUNTON ANDREWS KURTH LLP

2200 Pennsylvania Avenue NW

Washington, DC 20037

[ARGUED]

Tonya M. Gray

HUNTON ANDREWS KURTH LLP

1445 Ross Avenue

Suite 3700

Dallas, TX 75202

Thomas Vanaskie

STEVENS & LEE, P.C.

425 Biden Street

Scranton, PA 18503

Daniel B. Huyett

STEVENS & LEE, P.C.

111 N. Sixth Street

Reading, PA 19601

Counsel for Appellant (No. 24-1046)

Jesse Z. Grauman

[ARGUED]

U.S. DEPARTMENT OF LABOR

DIVISION OF FAIR LABOR STANDARDS

Room N2716

200 Constitution Avenue NW

Washington, DC 20210

Jennifer L. Stocker

U.S. DEPARTMENT OF LABOR

OFFICE OF THE SOLICITOR

200 Constitution Avenue NW

Washington, DC 20210

Counsel for Cross-Appellant (No. 24-1059)

————

OPINION OF THE COURT

BIBAS, Circuit Judge.

Hourly employees earn hourly pay. East Penn

Manufacturing tries to dodge this basic requirement.

First, it claims that employees bear the burden of

proving that their unpaid working time was more

than de minimis (trivial). And second, it claims that

employers need pay only for the reasonable time it

takes to complete assigned tasks, not the actual time.

Not so. Because the District Court correctly rejected

both claims as well as various other ones, we will

affirm.

I. EAST PENN DID NOT FULLY PAY WORKERS FOR

CHANGING AND SHOWERING

East Penn makes and recycles lead-acid batteries.

Because that work involves lead and other hazards,

some workers must wear uniforms and shower after

their shifts. The uniform is a T-shirt and work pants.

Many workers must also wear protective equipment,

like safety glasses and shoes; some must use hard

hats and respirators too.

Until 2003, East Penn did not pay hourly workers

for time they spent changing or showering. That

year, it started giving workers a five-minute grace

period at the start of each shift to dress and get to

their workstations, plus five minutes at the end to

undress and shower. In 2016, it doubled the postshift grace period to ten minutes. But it did not

record how much time workers actually spent changing and showering.

The government sued East Penn under the Fair

Labor Standards Act for failing to pay employees

for all time spent changing and showering. 29 U.S.C.

§§ 207, 211(c), 215(a)(2), (5). As part of the suit,

the government hired an expert, Dr. Robert Radwin,

who estimated that workers averaged 15.6 minutes

dressing pre-shift and 11 minutes undressing and

showering—more time than they were paid for.

At summary judgment, both sides agreed that

changing and showering are “integral and indispensable” to the workers’ principal activities. App.

148 (quoting Steiner v. Mitchell, 350 U.S. 247, 256

(1956)). So the District Court granted summary judgment on that issue to the government and told East

Penn that it had to pay employees for that time.

Steiner, 350 U.S. at 256. (Though East Penn challenges Steiner, it recognizes that precedent binds us.)

At trial, the jury found that East Penn owed 11,780

hourly uniformed workers roughly $22.25 million in

backpay. The District Court declined to award liquidated damages.

East Penn appeals, and the government crossappeals the denial of liquidated damages. We will affirm across the board.

II. EMPLOYERS BEAR THE BURDEN TO PROVE THAT

UNPAID TIME IS DE MINIMIS

The District Court instructed the jury that East

Penn bore the burden of proving that any unpaid

time was “trivial, minor, immaterial, too small to

be meaningful or worth the effort, to be taxed, measured, or counted.” App. 427. East Penn challenges

that instruction. We review claims that a jury

instruction misstated the law de novo. Franklin

Prescriptions, Inc. v. N.Y. Times Co., 424 F.3d 336,

338 (3d Cir. 2005). This instruction was right.

Though the Fair Labor Standards Act says nothing

about excluding trivial time, courts have recognized

an atextual de minimis exception. Anderson v. Mt.

Clemens Pottery Co., 328 U.S. 680, 692 (1946), superseded by statute on other grounds as recognized

in Carter v. Panama Canal Co., 463 F.2d 1289, 1293

(D.C. Cir. 1972). The line between negligible and

material time is hazy. Employers must pay workers

for “giv[ing] up a substantial measure of [their] time

and effort,” but not for “only a few seconds or minutes

of work beyond the scheduled working hours.” Id.

In the absence of a clear statutory directive, when

deciding who bears the burden of proving a statutory

defense, we consider five factors. Evankavitch v.

Green Tree Servicing, LLC, 793 F.3d 355, 361 (3d Cir.

2015). Because the de minimis defense is atextual,

these factors do not fit perfectly, so we adapt them

as needed. Applying them, we hold that the burden

of proving the de minimis defense belongs on the

employer.

Most importantly, we consider whether the doctrine is “framed as an exception to a statute’s general

prohibition or an element of a prima facie case.” Id.

at 361. Because the Act does not mention a de minimis defense, we cannot look for answers in the

statutory text. But we can ask whether the doctrine

overlaps with the elements of the plaintiff’s case.

See In re Sterten, 546 F.3d 278, 284–85 (3d Cir.

2008). It does not. The de minimis doctrine, like other

affirmative defenses, “will defeat the plaintiff’s or

prosecution’s claim, even if all the allegations in the

complaint are true.” Affirmative Defense, Black’s Law

Dictionary (12th ed. 2024). That suggests that the

defendant bears the burden of proof.

The other Evankavitch factors—whether the defense will unfairly surprise plaintiff, the party who

controls the relevant information, the statutory

scheme, and “policy and fairness considerations”—

collectively confirm that the employer bears the

burden of proof. 793 F.3d at 361. Here, until the

defense is raised, plaintiffs would not anticipate the

relevance of administrative efficiency in recordkeeping, which is a factor bearing on whether unpaid time

is de minimis. See De Asencio v. Tyson Foods, Inc.,

500 F.3d 361, 374 (3d Cir. 2007). Plaintiffs would

likely seek “different discovery” or alter “trial strategy [if] the defendant affirmatively pleaded the defense.” Evankavitch, 793 F.3d at 365. After all, employers control the information needed to prove the

defense. And that assumption is embedded in the

statutory scheme. The Act pushes the responsibility

to gather information about wages and hours onto

the employer. 29 U.S.C § 211(c). These are just the

kinds of “other policy or fairness considerations” that

Evankavitch instructs us to consider. 793 F.3d at 361.

So we join the Seventh, Ninth, and Tenth Circuits

in placing the burden of proof on the employer. Kellar

v. Summit Seating Inc., 664 F.3d 169, 176 (7th Cir.

2011); Cadena v. Customer Connexx LLC, 107 F.4th

902, 911, 915 (9th Cir. 2024) (relying on Rutti v.

Lojack Corp., Inc., 596 F.3d 1046, 1057 n.10 (9th Cir.

2010)); Peterson v. Nelnet Diversified Sols., LLC, 15

F.4th 1033, 1042–43 (10th Cir. 2021).

Because the de minimis doctrine is an affirmative

defense, employers must plead it in the answer. Fed.

R. Civ. P. 8(c)(1). Yet “[o]ften[,] evidence that a particular consequence or fact is de minimis will not be

evident from the face of the complaint, but will only

emerge with discovery.” Corbin v. Time Warner Ent.Advance/Newhouse P’ship, 821 F.3d 1069, 1080 (9th

Cir. 2016) (not treating the de minimis doctrine as an

affirmative defense, in tension with statements in

Cadena and Rutti that the employer bears the burden of proving time de minimis). So district courts

“should freely give leave [to amend and add this

defense] when justice so requires.” Fed. R. Civ. P.

15(a)(2).

III. EMPLOYERS MUST PAY FOR ACTUAL, NOT

REASONABLE, TIME SPENT

At summary judgment, the District Court held that

East Penn had to pay workers for the time they

actually spent on changing and showering, not just

the time reasonably needed to do so. And it instructed the jury that East Penn had “to pay each of

its employees for the time spent.” App. 425.

On appeal, East Penn says it did enough by paying

them for the two grace periods, the time it believes

was reasonable. Focusing on actual time, it worries,

would reward employees for dragging their feet or

tending to personal matters. But under the Act, the

correct measure is actual time.

East Penn argues that the Supreme Court has

already resolved this issue, but it has not. True, as

East Penn notes, Anderson v. Mt. Clemens Pottery

held that “under the conditions prevalent in [the]

plant, compensable working time was limited to the

minimum time necessarily spent in walking at an

ordinary rate along the most direct route.” 328 U.S.

at 692. The Court explained that “[m]any employees

took roundabout journeys and stopped off en route for

purely personal reasons.” Id. So it limited the payment to time that benefited the employer: time spent

working within the overall walking time.

But Anderson’s reach is limited because it

addressed activity that was not clearly work. Realizing the “immense” liabilities that could arise from

Anderson, the next year Congress amended the

statute to provide that preliminary walking activities

are not work. Steiner, 350 U.S. at 253; 29 U.S.C.

§§ 251(a), 254(a). Anderson reached its reasonabletime holding in the context of “the conditions prevalent in [the] respondent’s plant” and the employees’

activities. 328 U.S. at 692 (emphasis added). It recognized that “walking to work on the employer’s

premises” leaves a lot of room for loafing, so employers needed a reasonable limitation on compensation.

Id. at 691.

Congress later eliminated payment for that walking time. 29 U.S.C. § 254(a). Anderson required reasonable time instead of actual time when tracking an

activity that no longer counts as work. That carve-out

does not apply here, where East Penn concedes that

the changing and showering activities are work. Plus,

the Supreme Court has distinguished the walking

activities in Anderson from walking time incident

to changing and showering. IBP, Inc. v. Alvarez, 546

U.S. 21, 35 (2005). So we look to the text of the

statute as our guide.

The Act’s text focuses on actual time. “Among the

bedrock principles of the [Act] is the requirement

that employers pay employees for all hours worked.”

Smiley v. E.I. Dupont De Nemours & Co., 839 F.3d

325, 330 (3d Cir. 2016) (emphasis added). The wageand-hour provisions track the hours that employees

work; they say nothing about a reasonableness limit.

29 U.S.C. §§ 206(a)(1), 207(a)(1). Plus, the Act orders

employers to track actual hours and keep records of

them. Id. § 211(c). That requirement “ensure[s] that

all workers are paid the minimum wage for every

hour worked.” Williams v. Tri-Cnty. Growers, Inc.,

747 F.2d 121, 128 (3d Cir. 1984). If reasonable time

sufficed, employers could instead estimate hours, but

estimating violates the recordkeeping requirement.

Id. If a worker lollygags, “the employer’s recourse

is to discipline or terminate the employee—not to

withhold compensation.” Sec’y U.S. Dep’t of Lab. v.

Am. Future Sys., Inc., 873 F.3d 420, 432 (3d Cir.

2017) (internal quotation marks omitted).

We thus join the Sixth Circuit in basing liability on

the actual time that workers spend. Brock v. City of

Cincinnati, 236 F.3d 793, 802–03 (6th Cir. 2001); see

also Holzapfel v. Town of Newburgh, N.Y., 145 F.3d

516, 526–28 (2d Cir. 1998) (using actual time instead

of reasonable time at least in the context of K-9

officers); Alvarez v. IBP, Inc., 339 F.3d 894, 914 (9th

Cir. 2003) (not “disagree[ing]” that the Act focuses on

work actually performed, but applying a reasonable

time standard to calculate class-wide damages),

aff’d on other grounds, 546 U.S. 21 (2005). By contrast, the Tenth Circuit has used reasonable time,

but only as part of a retroactive damages calculation.

Reich v. IBP, Inc., 38 F.3d 1123, 1127 (10th Cir.

1994) (using reasonable time when there were no

records of actual time and explaining that there were

“differences in personal routines”); cf. Lopez v. Tyson

Foods, Inc., 690 F.3d 869, 878 (8th Cir. 2012) (holding

only that, on plain-error review, “the district court’s

‘reasonable time’ instructions, if error, were not clear

error” given the unclear case law on the issue).

IV. EAST PENN’S OTHER CLAIMS ALSO FAIL

East Penn raises a slew of other claims. None is

persuasive.

10a

A. Any error on the recordkeeping issue was

harmless

Employers must keep records of their hourly employees’ “[h]ours worked each workday and total

hours worked each workweek.” 29 C.F.R. § 516.2(a)(7).

At summary judgment, the District Court held East

Penn liable for not keeping required records of

how long workers spent changing and showering.

It also rejected East Penn’s de minimis defense to

that record-keeping violation.

East Penn says the court should have first let the

jury decide whether the time spent was de minimis.

29 C.F.R. § 785.47 (providing that, in keeping records, employers may disregard “insubstantial or

insignificant periods of time beyond the scheduled

working hours”). But if there was error, it was

harmless. The jury was instructed properly and

found that the time spent was not de minimis. The

jury found East Penn liable for $22.5 million of

unpaid wages. Properly viewed in the aggregate, this

sum is indeed not de minimis. See De Asencio, 500

F.3d at 375 (directing the District Court to consider

unpaid time in the aggregate); Cadena, 107 F.4th

at 911 (“[C]ourts have awarded relief for claims that,

when aggregated, amounted to a substantial claim,

even if the amounts might be minimal on a daily

basis.” (internal quotation marks omitted)). Because

the time in question was not de minimis, East Penn

had to keep records of that time. So any de minimis

defense to recordkeeping would not apply.

B. There was enough representative evidence

Plaintiffs may prove claims under the Act by using

representative evidence of some employees’ experiences to show how employees in general were treated.

11a

Reich v. Gateway Press, Inc., 13 F.3d 685, 701–02

(3d Cir. 1994). After trial, the District Court denied

East Penn’s motion for judgment as a matter of law,

holding that the government had put on sufficient

representative evidence. That ruling was proper too.

On appeal from the jury verdict, we “view[] the

evidence in the light most favorable to the nonmovant” (here, the government) and must affirm if

there is enough evidence “from which a jury reasonably could find liability.” Lightning Lube, Inc. v.

Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). This

case clears that low bar. Though only a small number

of employees testified, East Penn correctly concedes

that “there is no bright-line test establishing the percentage of employees necessary to achieve a representative sample.” Appellant’s Br. 38. And though the

employees were spread across twenty-four plants,

they “were all subject to the same pay and uniform

policies that provided insufficient time to complete

clothes-changing and showering activities on East

Penn’s campus.” App. 77–78. Plus, Dr. Radwin’s expert time study gave the jury additional representative evidence. A reasonable jury could have seen all

this as representative enough to support liability.

C. The District Court properly admitted the

government expert’s testimony

East Penn raises one final challenge: The District

Court should not have admitted the testimony of the

government’s expert, Dr. Robert Radwin. He hired six

research assistants to observe eight (out of twentyfour) plants: three large, three medium, and two

small. They measured the time that 370 workers

spent putting on clothing and 131 workers spent

taking it off and showering. Dr. Radwin then prepared a report and testified about his findings.

12a

East Penn argues that the District Court abused

its discretion because Dr. Radwin’s testimony was

unreliable. It objects that, by averaging data across

eight plants, he obscured differences among them.

And it contends that he could not validly extrapolate

from eight plants to all twenty-four.

As the District Court explained, despite any methodological flaws, Dr. Radwin’s testimony was admissible. The court properly understood the legal standard: whether Dr. Radwin’s technique was reliable

enough to help the jury reach an accurate result.

In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744

(3d Cir. 1994). Although East Penn challenges how

he calculated and interpreted the results, such a

challenge “ordinarily goes to the weight of the

evidence, not to its admissibility.” Karlo v. Pittsburgh

Glass Works, LLC, 849 F.3d 61, 83 (3d Cir. 2017).

The District Court did not abuse its discretion by

admitting his evidence.

V. THE DISTRICT COURT PROPERLY DENIED

LIQUIDATED DAMAGES

The Secretary cross-appeals the District Court’s

refusal to award liquidated damages. Employers

who violate the Act are liable for back pay plus

“an additional equal amount as liquidated damages.”

29 U.S.C. § 216(b). But courts have discretion not

to award liquidated damages if the employer shows

that its violation “was in good faith” and that it “had

reasonable grounds for believing that [its] act or

omission was not a violation” of the Act. Id. § 260.

To qualify, the “employer must show that [it] took

affirmative steps to ascertain the Act’s requirements,

but nonetheless, violated its provisions.” Martin v.

Cooper Elec. Supply Co., 940 F.2d 896, 908 (3d Cir.

1991). We review the District Court’s legal conclusion

13a

that East Penn had reasonable grounds de novo, its

underlying findings of historical fact for clear error,

and its ultimate denial of liquidated damages for

abuse of discretion. Id.

In finding the facts, the District Court did not

clearly err. After trial, it held an evidentiary hearing,

reviewed the documentary evidence, and weighed

the witnesses’ credibility. It found that East Penn

had “relied in good faith on the advice of a properly

experienced labor and employment attorney” and

“tailored its policies in response to, and consistent

with, the information and guidance it received from

its attorney.” App. 229–30 (footnotes omitted). Those

findings were proper.

Based on those facts, the District Court correctly

concluded that East Penn had reasonable legal

grounds to think that its employment practices were

lawful. Before this opinion, the Third Circuit had no

controlling precedent on whether employers had to

pay for actual or reasonable time. East Penn asked

legal counsel how to follow the law, and counsel

advised East Penn that it might be able to disregard

pre-shift work as de minimis. Even though that

advice turned out to be mistaken, following it was

reasonable. So the District Court properly exercised

its discretion not to award liquidated damages.

* * * * *

Under the Fair Labor Standards Act, employers

must pay hourly employees for the time that they

actually work, not just a reasonable amount of

time. If employers claim that time was trivial, they

bear the burden of proving that de minimis defense.

Because the District Court correctly held East Penn

to those requirements, we will affirm.

14a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

————

Nos. 24-1046, 24-1059

(D.C. No. 5:18-cv-01194)

————

SECRETARY UNITED STATES DEPARTMENT OF LABOR,

Cross-Appellant (No. 24-1059)

EAST PENN MANUFACTURING COMPANY, INC.,

Appellant (No. 24-1046)

————

SUR PETITION FOR REHEARING

————

Present: CHAGARES, Chief Judge, and HARDIMAN,

SHWARTZ, KRAUSE, RESTREPO, BIBAS,

PORTER, MATEY, PHIPPS, FREEMAN,

MONTGOMERY-REEVES,

Circuit Judges

The petition for rehearing filed by Appellant/CrossAppellee in the above-captioned case having been

submitted to the judges who participated in the

decision of this Court and to all the other available

circuit judges of the circuit in regular active service,

and no judge who concurred in the decision having

asked for rehearing, and a majority of the judges of

Judge Ambro’s vote is limited to panel rehearing only.

15a

the circuit in regular service not having voted for

rehearing, the petition for rehearing by the panel and

the Court en banc is DENIED.

By the Court,

s/Stephanos Bibas____

Circuit Judge

Dated: February 20, 2025

PDB/cc: All Counsel of Record

16a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

————

Civil Action No. 18-1194

————

MARTIN J. WALSH,

Secretary of Labor,1

Plaintiff

EAST PENN MANUFACTURING CO., INC.,

Defendant

————

MEMORANDUM

PRATTER, J.

AUGUST 17th, 2021

The Secretary of Labor initiated this action against

East Penn Manufacturing Co., Inc., a battery

manufacturer, alleging that East Penn has failed to

compensate its employees for time spent changing

into and out of uniforms and personal protective

equipment and showering at the end of a work shift.

East Penn does not dispute that the time spent

donning, doffing, and showering is compensable

under the Fair Labor Standards Act of 1938, 29

U.S.C. §§ 203 et seq. The crux of the dispute is

whether East Penn’s pay policies, which compensate

employees based on what it deems a “reasonable”

time for these tasks, are sound as a matter of law and

Pursuant to Federal Rule of Civil Procedure 25(d), the latest

Secretary of Labor, Martin J. Walsh, is substituted for Eugene

Scalia as the plaintiff in this action.

17a

sufficient as a matter of fact. Contrary to the

Secretary’s contentions, East Penn disputes that it is

legally required to compensate for the actual time

expended by any given employee. But to the extent

that such compensation as it pays is deficient, East

Penn then maintains that the difference between

what is “reasonable” and what would be “actual” is

de minimis. Like the Energizer Bunny, the parties

have pounded their steady drumbeats, with each side

steadfast in its belief that it poses the correct

standard of measurement.

Following an extensive discovery period and a

multitude of discovery disputes, including expert

discovery 2 , both parties moved for summary judgment. East Penn moved for partial summary judgment first on its good faith defense to the Secretary’s

claim for liquidated damages and to foreclose the

Secretary’s claim that East Penn willfully violated

the FLSA. Doc. No. 155. East Penn then followed up

with a second motion for partial summary judgment

to foreclose certain categories of employees from a

potential recovery class on the basis that the

Secretary failed to produce sufficient evidence to

prove uncompensated time as to them. Doc. No. 156.

In response, the Secretary filed a motion for partial

summary judgment on no less than 11 separate

issues. Doc. No. 161. The Secretary asks the Court

first to find, as a matter of law, that East Penn must

pay its employees for actual time worked, not a

“reasonable” duration of time for the subject tasks.

He also moves for a finding that East Penn violated

The Court previously considered and ruled on the admissibility of each of the parties’ respective Daubert challenges.

Scalia v. E. Penn Mfg. Co., No. CV 18-1194, 2020 WL 5409164

(E.D. Pa. Sept. 9, 2020).

18a

the recordkeeping and overtime provisions of the

FLSA, that such violations were willful, and that

the uncompensated time was not de minimis. The

Secretary then filed two motions to strike certain of

East Penn’s exhibits supporting its motion for summary

judgment, Doc. No. 198, and East Penn’s Notice of

Supplemental Authority, Doc. No. 231. The Court

held oral argument on these fully briefed motions.

While the motions for summary judgment were

pending, the parties could not resist filing additional

discovery related motions. The Secretary filed a

notice to amend Schedule A to his complaint, adding

a few thousand additional East Penn employees to

the group deserving compensation under the Secretary’s

theories. East Penn responded with a motion to

strike. Doc. No. 251.3

Having powered through literally stacks of competing briefs, the Court finds that many of the issues

raised in parties’ motions for summary judgment to

be premature and thus not properly resolvable at this

stage of the proceeding.

The Court previously granted the Secretary’s motion to

compel East Penn to provide an updated list of names and

contact information for its Pennsylvania-based employees.

Walsh v. E. Penn Mfg. Co., No. CV 18-1194, 2021 WL 1318003,

at *1 (E.D. Pa. Apr. 8, 2021).

19a

TABLE OF CONTENTS

BACKGROUND...................................................

A. Tracking East Penn Employees’ Time .......

B. East Penn’s Pay Policies for Donning and

Doffing .........................................................

C. Time Spent by Uniformed Employees on

Pre and Post Shift Activities ......................

LEGAL STANDARDS .........................................

I. Applicable FLSA Law ...............................

II. The Secretary’s Motion for Partial

Summary Judgment .................................

A. Uncontested Issues ..............................

B. Correct Measurement of Compensable

Time .....................................................

C. FLSA Recordkeeping Violation ...........

D. Whether East Penn Violated the

FLSA Overtime Requirements ...........

E. East Penn’s Time Clock Records as

Minimum Amount of Uncompensated

Time .....................................................

F. East Penn’s de minimis Defense. ........

III.East Penn’s Motion for Partial Summary

Judgment as to Scope of Employees ..........

A. Employees Who Work Outside of

Pennsylvania .......................................

B. Continuous Operations Employees.....

C. Employees Who Do Not Wear a

Uniform and Shower ...........................

20a

D. Uniformed Employees Not at the

Eight Facilities Studied ......................

IV. Damages ...................................................

A. Background on DOL Investigations

and East Penn’s Policies ....................

i. The 2003 Uniform Policy ...............

ii. Pre-2016 OSHA Investigations .....

iii. The 2016 OSHA Complaint ...........

iv. Wage and Hour Division Investigations ............................................

B. Liquidated Damages ...........................

i. The Secretary’s Motion ..................

ii. East Penn’s Motion ........................

C. Whether East Penn’s Violations Were

Willful .................................................

i. The Secretary’s Motion ..................

ii. East Penn’s Motion ........................

D. Injunctive Relief ..................................

V. The Secretary’s Motions to Strike ............

A. The Secretary’s Motion to Strike

East Penn’s Exhibits ...........................

B. The Secretary’s Motion to Strike

East Penn’s “Notice of Supplemental

Authority” ...........................................

VI. East Penn’s Motion to Strike...................

CONCLUSION ....................................................

21a

BACKGROUND4

East Penn manufactures and recycles lead acid

batteries at its Lyon Station, Pennsylvania campus.

Doc. No. 156-2 ¶ 1; Doc. No. 157 ¶ 2. The Lyon

Station facility consists of roughly 30 separate divisions

and plants, including automotive, industrial, metals,

and manufacturing support services. Doc. No. 156-2

¶¶ 2-4; Doc. No. 157 ¶¶ 5-6, 8. East Penn employees

are not union represented and have not entered

into a collective bargaining agreement with their

employer. Doc. No. 157 ¶ 11; Doc. No. 176-1 ¶ 11(a).

Most of East Penn’s plants operate 24 hours a day,

divided into three consecutive eight-hour shifts, Doc.

No. 157 ¶ 19; Doc. No. 176-1 ¶ 19(a). The exception

is East Penn’s “continuous operations” departments

which—as its name suggests—operate with partially

overlapping eight-and-a-half hour shifts. Id. The

overlapping scheduling ensures that the machines in

those plants are never taken offline.

East Penn requires that all employees at the Lyon

Station campus wear personal protective equipment,

regardless of their risk of exposure to lead, chemicals,

or other hazards. Doc. No. 157 ¶ 39; Doc. No. 176-1

¶ 39(a). Because of the chemicals with which they

work, certain East Penn employees are required to

change out of their street clothes and into a uniform

prior to entering the production floor at the beginning

of their shifts. Doc. No. 157 ¶ 42; Doc. No. 176-1

¶ 42(b). This uniform is supplied each day and the

employee is required to be fully dressed in the

uniform prior to entering the production floor. Doc.

No. 157 ¶ 47-48; Doc. No. 176-1 ¶¶ 47(b), 48(a).

The relevant facts are from the undisputed factual record.

Facts that remain in dispute are so noted.

22a

Depending on the hazards associated with the job,

East Penn also requires certain employees to wear

additional PPE, including safety shoes, respirators,

and hard hats. Doc. No. 157 ¶ 41; Doc. No. 176-1

¶ 41(a).

At the end of their shifts, uniformed employees

remove their uniforms and change back into their

street clothes prior to leaving the facility. Doc. No.

157 ¶50; Doc. No, 176-1 ¶ 50(a). Some of them also

shower as part of their end-of-shift activities. The

parties dispute whether all uniformed employees are

required to shower as part of the end of shift

activities. Doc. No. 157 ¶ 54; Doc. No. 156-2 ¶ 109;

Doc. No. 176-1 ¶ 54(b). East Penn maintains that

only uniformed employees who work in defined lead

exposure areas must shower. Doc. No. 176-1 ¶ 54(b).

But it is undisputed that employees face disciplinary

action for failing to wear their uniforms and for

failing to shower, if showering is required. Doc. No.

176-1 ¶¶ 60-61.

A. Tracking East Penn Employees’ Time

East Penn maintains two sets of time records for

each of their employees. The first is what East Penn

deems “actual” time (or “Act1” as appears on some

time sheets). Per East Penn policy, all employees are

required to swipe in and out using a card-scanning

system located in the plant to which they are

assigned. Doc. No. 157 ¶¶ 62, 63; Doc. No. 176-1

¶¶ 62(a), 63(a). Employees are required to swipe in

no more than 14 minutes before the start of their

shift and 14 minutes after the end of their paid shift.

Doc. No. 157 ¶ 69; Doc. No. 176-1 ¶ 69(b). The time

clock system records these swipe times to the minute,

which are then preserved in East Penn’s “mainframe.”

Doc. No. 157 ¶¶ 65-67; Doc. No. 176-1 ¶¶ 65(a)-67(a).

23a

The second set of time records is for “adjusted”

time. Adjusted time corresponds to the employees’

scheduled shift times and does not show the 1-14

minutes before and after shifts.5 Doc. No. 157 ¶¶ 77,

82; Doc. No. 176-1 ¶¶ 77(b) 82(b). Both the actual and

adjusted time entries appear on an employee’s

Payroll Transaction Edit List. Doc. No. 157 ¶ 82; Doc.

No. 176-1 ¶ 82(a). East Penn does not pay for “actual”

time that is, the recorded between the swipes.

Instead, East Penn pays employees based on

“adjusted” time—the length of their scheduled

production shift—which is paid out in 15-minute

increments. Doc. No. 157 1 ¶ 69; Doc. No. 176-1 ¶

69(b). Some employees swipe in when their shift time

officially starts so there is no discrepancy between

“actual” and “adjusted” time. Doc. No. 176-1 ¶ 123(b)

(Secretary’s time study expert admitted some of his

subjects did indeed have identical “actual” and

“adjusted” times).

The parties dispute the import of time clocks and

East Penn’s requirement that employees clock in and

out no more than 14 minutes from the start and end

of their shifts. East Penn maintains that the time

clock policy is used only as an attendance tool to

ensure that employees are in the plant for their full

shift, not to mark the official beginning or ending of

the continuous workday as a means to calculate pay.6

For example, an employee who swipes in at 6:46 a.m. for a

7:00 a.m. shift would have an Actual Time entry of 6:46 a.m.

and an Adjusted In time of 7:00 a.m.

Department of Labor (“DOL”) regulations do not require

that employers use time clocks for purposes of calculating pay.

29 C.F.R. § 785.48(a) (“In those cases where time clocks are

used, employees who voluntarily come in before their regular

starting time or remain after their closing time, do not have to

be paid for such periods provided, of course, that they do not

24a

Doc. No. 176-1 ¶ 69(b). The Secretary contends that

the “14-minute rule” is probative of East Penn’s

knowledge that its employees required more than the

time East Penn has allotted to complete pre- and

post-shift activities.

B. East Penn’s Pay Policies for Donning and

Doffing

There are two pertinent East Penn policies

governing beginning and end-of-day activities. East

Penn’s Time Clock and Pay Procedures, effective as of

1998, require that each employee be at her or his

workstation at shift starting time. Doc. No. 157 ¶ 71;

Doc. No. 176-1 ¶ 71(a). In 2003, East Penn formalized

a five-minute “grace period” for compensable start-ofshift clothes changing (the 2003 Company Uniform

Policy). Doc. No. 157 ¶ 94; Doc. No. 176-1 ¶ 94. Under

this policy, “for pay purposes,” employees have five

minutes after the start of their shift to report to their

workstation. Doc. No. 176-1 ¶ 71(b).

In 2016, in response to an employee complaint,

East Penn increased its paid shower and end-of-shift

clothes changing time in all plants to ten minutes

(the 2016 Personal Protective Equipment/Uniform/

Shower Policy).7 Since then, if an employee works in

an area that requires a uniform, the following policy

applies:

engage in any work. Their early or late clock punching may be

disregarded.”).

The evolution of East Penn’s compensation policies bears on

both the Secretary’s motion for summary judgment as to East

Penn’s liability for liquidated damages and willfulness claim

and East Penn’s motion for summary judgment as to its good

faith defense to the Secretary’s request for liquidated damages.

For that reason, the Court recounts that history in detail in

Section IV, infra.

25a

1. Employees are expected to be at their

designated workstations wearing their

uniform and other PPE (Personal Protection Equipment) at the start of their shift.

For pay purposes, employees will be

granted a five-minute grace period after

the start of the shift to report to their

workstation for the purpose of donning

uniforms. Employees may be granted

longer clean up time in departments or

under certain circumstances when approved

by Plant Management of Supervisor.

2. Employees will be granted a 10-minute

shower time which includes walking distance to the locker room, doffing the uniform

and showering.

Doc. No. 155-64 (emphases in original).

C. Time Spent by Uniformed Employees on

Pre and Post Shift Activities

The time that East Penn employees spend donning,

doffing, and showering is compensable. The parties

dispute whether the employees performed this compensable work outside of their eight-hour shift times.

During discovery, East Penn stated that its pertinent personnel are aware that some employees don

their uniforms prior to the start of their shift and

that some employees arrive at their workstations

prior to the start of their shift. Doc. No. 176-1 ¶ 98(b).

In support of its motion for summary judgment, East

Penn submitted some 650 employee declarations. 8

In his reply to his motion for partial summary judgment, the

Secretary again asks the Court to prevent East Penn from using

these witness declarations. The Secretary contends that these

declarations were obtained through coercion and were made

26a

Employees attest to the time they arrive at work and

their pre- and post-shift routine, including estimating

the amount of time for each. Of those, roughly 200

employees acknowledged that the grace period exists,

and of that subset, some of them stated that they

make use of the grace period some portion of the

time. Doc. No. 176-1 ¶¶ 94(b), 97(b), 98(b). Other

employees declare that they acquire and don their

uniform prior to the shift start.

To support its claim that employees were expected

or made to work off the clock, the Secretary

submitted the results of a time study conducted

by his expert, Dr. Robert G. Radwin. Dr. Radwin

conducted what is known as a “did-take” study that

measures the actual time employees spent to perform

given tasks. Of the 29 plants within the Lyon Station

complex, he selected a subset of eight plants to study.

Within those eight plants, he and his research team

ultimately observed the pre-shift activities of 370

randomly selected employees who were required to

wear uniforms and PPE and post-shift activities of

131 employees who were likewise required to wear

uniforms and shower. Doc. No. 174 at 9.

To determine when uniformed employees begin

their pre-shift activities, Dr. Radwin measured the

time between their “first touch”—i.e., when they

acquired their uniform or PPE item—and compared

that time to their shift start time. Doc. No. 157 ¶ 112.

against the employee’s legal interests. The Court previously

considered—and rejected—the Secretary’s arguments of this ilk,

finding that the evidence weighed in East Penn’s favor and that

the Secretary failed to provide evidence to support his claims.

Scalia v. E. Penn Mfg. Co., No. CV 18-1194, 2020 WL 3186213,

at *11 (E.D. Pa. June 13, 2020). The Court finds no reason to

disturb its prior ruling.

27a

Dr. Radwin concluded that, for those uniformed

employees, the 370 uniformed employees performed

their “first touch” approximately 15.6 minutes before

their shift time started. Doc. No. 157 ¶ 114. As for

measuring the time to complete end-of-shift activities,

Dr. Radwin recorded the time that uniformed

employees left the production floor and the time of

their last touch. Doc. No. 157 ¶ 115. For this span of

time, he estimated that an average of 11.0 minutes

had elapsed. Doc. No. 157 ¶ 116. Dr. Radwin did not

compare the results of his study to the amount of

time East Penn’s pay policies operate to compensate

an employee.

As with its Daubert challenge to Dr. Radwin, East

Penn once again raises several challenges to his

methodology, as well as the results of the study. Doc.

No. 176-1 ¶ 116(b). East Penn criticizes Dr. Radwin

for estimating a single average he then extrapolated

to all plants, disputes the scope of activities Dr.

Radwin considered to trigger a “first touch,” and

challenges the relevance of his estimates to nonuniformed employees given Dr. Radwin’s admission

that his study results were “applicable only to

employees who were [sic] uniforms.” Doc. No. 156

Ex. 18 (Radwin Depo. Tr.). at 115:22-24; 579:21-23;

583:14-19.

Regardless of East Penn’s challenges to the time

study, East Penn admits that Dr. Radwin’s “own

subjects acquired and donned their uniform either

entirely or partially on paid time, i.e., during East

Penn’s grace period.” Doc. No. 176-1 ¶ 98(b)

(emphasis added).

28a

LEGAL STANDARDS

A court can properly grant a motion for summary

judgment “if the movant shows that there is no

genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). An issue is “genuine” if there is

a sufficient evidentiary basis on which a reasonable

jury could return a verdict for the non-moving party.

Kaucher v. Cty. of Bucks, 455 F.3d 418, 423 (3d Cir.

2006) (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)). A factual dispute is “material”

if it might affect the outcome of the case under

governing law. Id. (citing Anderson, 477 U.S. at 248).

Under Rule 56, a court must view the evidence presented in the light most favorable to the non-moving

party. See Anderson, 477 U.S. at 255. However,

“[u]nsupported assertions, conclusory allegations, or

mere suspicions are insufficient to overcome a motion

for summary judgment.” Betts v. New Castle Youth

Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010).

The movant bears the initial responsibility to

establish the basis for the motion for summary

judgment and identify the portions of the record

that demonstrate the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). Where the non-moving party bears the

burden of proof on an issue, the moving party’s initial

burden can be met simply by “pointing out to the

district court that there is an absence of evidence to

support the nonmoving party’s case.” Id. at 325. After

the moving party has met its initial burden, the nonmoving party must set forth specific facts showing

that there is a genuinely disputed factual issue for

trial by “citing to particular parts of materials in the

record, including depositions, documents, electronically

29a

stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other

materials” or by “showing that the materials cited do

not establish the absence or presence of a genuine

dispute.” Fed. R. Civ. P. 56(c). Summary judgment is

appropriate if the non-moving party fails to rebut by

making a factual showing “sufficient to establish the

existence of an element essential to that party’s case,

and on which that party will bear the burden of proof

at trial.” Celotex, 477 U.S. at 322.

When parties file cross-motions for summary judgment, “the court must rule on each party’s motion on

an individual and separate basis, determining, for

each side, whether a judgment may be entered in

accordance with the Rule 56 standard.” Auto-Owners

Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388, 402 (3d

Cir. 2016) (alteration omitted) (quoting 10A Charles

Alan Wright, Arthur R. Miller & Mary Kay Kane,

Federal Practice and Procedure § 2720 (3d ed. 1998)).

DISCUSSION

I. Applicable FLSA Law

The Court begins its evaluation of the three crossmotions for summary judgment and three motions to

strike by providing an overview of the FLSA, the

Portal-to-Portal Act, and case law bearing on the

compensability of the activities at issue in this case

and an employer’s statutory obligations.

Though perhaps surprising, the FLSA does not

define “work.” The Supreme Court has described

work, for purposes of the Act, as “physical or mental

exertion (whether burdensome or not) controlled or

required by the employer and pursued necessarily

and primarily for the benefit of the employer and his

business.” IBP, Inc. v. Alvarez, 546 U.S. 21, 25 (2005).

30a

Over 50 years ago, the Supreme Court held that the

time spent walking to workstations after punching a

timecard was compensable. Anderson v. Mt. Clemens

Pottery Co., 328 U.S. 680, 682-84 (1946). But the

Court also introduced a limiting principle to the idea

that any time spent on such work is necessarily

compensable. “[I]nsubstantial and insignificant periods

of time spent in preliminary activities need not be

included in the statutory workweek.” Id. at 693. The

“de minimis” doctrine thus allows for “only a few

seconds or minutes of work beyond the scheduled

working hours . . . [to] be disregarded . . . ” to avoid

“[s]plit-second absurdities.” Id. at 692; see also 29

C.F.R. § 785.47. The doctrine, which accounts for the

realities of the industrial world, is not an unfamiliar

principle of practicality.9

For example, the Internal Revenue Code recognizes that “de

minimis fringe benefits,” such as occasional snacks or coffee,

provided by an employer can be excluded from an employee’s

gross income. I.R.C. § 132(a)(4). The de minimis principle is

prevalent in property law too. When a party’s encroachment

onto a neighboring property is unintentional and slight, such

that the cost of removal would be “so great as to cause grave

hardship or otherwise make its removal unconscionable,” the

proper course of action is not to issue a mandatory injunction to

compel the removal of the encroaching structure. See, e.g.,

Golden Press, Inc. v. Rylands, 235 P.2d 592 (Colo. 1951).

Similarly, a defendant in a copyright action might assert a de

minimis defense where the copying is so trivial “as to fall below

the quantitative threshold of substantial similarity” and does

not “qualitatively embod[y] the distinctive expression of the

copyrighted material.” William A. Graham Co. v, Haughey,

430 F. Supp. 2d 458, 473 (E.D. Pa. 2006); see also Ringgold v.

Black Entm’t Television Inc., 126 F.3d 70, 74 (2d Cir. 1997).

Collectively, the de minimis principle reflects judicial wisdom

that the law does not engage in mere trifles. Wis. Dep’t of

Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992).

31a

Concerned about the potential overbreadth of the

result in Mt. Clemens, Congress enacted the Portalto-Portal Act of 1947, 29 U.S.C. §§ 251 et seq., which

amended provisions of the FLSA and carved out

activities that might otherwise be considered compensable. Relevant to this case, the Portal-to-Portal

Act precluded compensation for “preliminary or postliminary” activities to the principal work. 29 U.S.C.

§ 254(a)(2). “Principal activities” are those that the

employee is “employed to perform” or activities that

are integral and indispensable to the principal

activity. 29 C.F.R. § 790.8. The Portal-to-Portal Act

did not, however, alter or amend the Court’s definition of “work,” nor did it disturb the de minimis

doctrine. 29 C.F.R. § 785.7.

The Supreme Court subsequently held that

activities before or after the workday that are an

“integral and indispensable part of the principal

activities” are compensable under the FLSA. Steiner

v. Mitchell, 350 U.S. 247, 256 (1956). Steiner held

that donning and doffing personal protective gear

and post-work showering were integral and indispensable for certain workers in a battery plant who

regularly handled hazardous materials. Id. at 249.

The Court confirmed that it “would be difficult to

conjure up an instance where changing clothes and

showering are more clearly an integral and indispensable part of the principal activity of the employment than in the case of these employees.” Id. at 256.

Because the time spent changing clothes and showering constituted “work” under the FLSA, the battery

plant employees were entitled to compensation

during or for those activities.

Most recently in IBP, Inc. v. Alvarez, the Court

sought to clarify the definition of “compensable time”

32a

under the FLSA in light of both the Portal-to-Portal

Act and Steiner. 546 U.S. 21 (2005). Finding that

doffing gear that is integral and indispensable to

work is a principal activity, the Court went on to hold

that time spent waiting to doff is covered by the

FLSA and is not affected by the Portal-to-Portal Act.

Id. at 40. Conversely, it held that time spent waiting

to don the first piece of gear—to mark the start of

the continuous, and compensable, workday—is not

covered by the FLSA. Id. at 42.

In some respects, the Alvarez decision announced

some clear markers. The Department of Labor interpreted Alvarez to “clearly stand[] for the proposition

that where the aggregate time spent donning, walking, waiting and doffing exceeds the de minimis

standard, it is compensable.” DOL Wage & Adv.

Mem. No. 2006-2 n.1 (May 31, 2006). The Court,

however, did not resolve all ambiguities that have

percolated since Steiner—notably what the parties

contend is a burgeoning circuit split over how to

calculate compensable time.10

II The Secretary’s Motion for Partial Summary

Judgment

The Secretary requests that the Court rule in his

favor on 11 separate issues that go both to East

Penn’s liability and available damages.11 The Secretary

The district court in Alvarez pegged “the compensable time

for each activity [] [to] the basis of a reasonable time, rather

than the actual time required for each activity.” Alvarez v. IBP,

Inc., 339 F.3d 894, 914 (9th Cir. 2003). When it affirmed the

damages award, the Court did not weigh in either way on the

appropriate method of calculating compensable time.

Among other things, the Secretary moves for a finding

that East Penn’s violations were willful, that it is liable for

liquidated damages, and that its actions warrant injunctive

33a

seeks summary judgment in his favor as

to the substantive FLSA claims as to liability and

to foreclose East Penn from contesting damages,

including by presenting a de minimis defense. The

Court, having carefully reviewed the disputes of fact

that prevent resolution of certain issues on summary

judgment, grants the Secretary’s motion in part and

denies it in part.

A. Uncontested Issues

Of the 11 grounds raised by the Secretary, East

Penn does not dispute two of them: it admits (1) that

it is a covered enterprise engaged in commerce or in

the production of goods for commerce under the

FLSA, and (2) that the donning and doffing activities

at issue are considered “integral and indispensable”

within the meaning of Steiner v. Mitchell, 350 U.S.

247, 256 (1956). Accordingly, the Court grants summary judgment in the Secretary’s favor as to these

two undisputed issues.

B. Correct Measurement of Compensable Time

The Secretary moves for summary judgment as to

the activities that start and stop the “continuous

workday.” The “continuous workday rule” defines the

“workday” as “the period between the commencement

and completion on the same workday of an employee’s principal activity or activities.” Alvarez, 546

U.S. at 29 (quoting 29 C.F.R. § 790.6(b)). The

Supreme Court held that “principal activity or

activities . . . embraces all activities which are an

relief. Because these arguments go to the scope of appropriate

damages, the Court considers them along with East Penn’s

cross-motion as to its good faith defense and East Penn’s effort

to foreclose the Secretary’s willfulness claim. See Section IV,

infra.

34a

integral and indispensable part of the principal

activities.” Id. at 29-30. Although East Penn admits

that donning, doffing, and showering are integral and

indispensable activities, it does not agree that it is

obligated to pay for all time between the start and

stop of the continuous workday (excluding meal

breaks or off-duty breaks).

As has been previewed in prior memoranda

throughout this litigation, the parties vigorously

dispute the correct measure of the continuous

workday. The Secretary asks the Court to find, as a

matter of law, that East Penn must record and pay

their uniformed employees for the actual time it

takes to don and doff a uniform and shower. East

Penn asserts that it must compensate its employees

only for time reasonably spent donning, doffing, and

showering. East Penn admits that it does not record

and has not recorded and does not pay for the actual

time spent on the indisputably compensable activities. But it contends that the 15 minutes of

compensable time it applies to its employees (i.e., the

five-minute grace period at the start, and the ten

minutes at the end of the day) is reasonable and

sufficient.

As a matter of legal principle, the Court cannot

adopt East Penn’s position. The Court reaches this

conclusion having reviewed relevant case law, as

well as the Department of Labor’s rulings, opinions,

and interpretations. Collectively, these sources support the Secretary’s interpretation as a matter of

precedent, pragmatism, and, of no small moment,

achieving the purpose of the FLSA.

Although the Supreme Court in Alvarez did not

reach the issue of the correct method of measurement, it unequivocally held that the continuous

35a

workday rule requires that employees be compensated for all time spent during the continuous

workday. 546 U.S. at 37. Nothing in the Court’s

opinion suggests that “all” is interchangeable or

otherwise synonymous with “reasonable.”

At first glance, the circuit courts of appeals that

have addressed the correct measure appear to be

split between an actual and reasonable time

standard. Absent binding precedent from the Third

Circuit Court of Appeals on this issue, this Court may

look to other circuits for helpful guidance.12 The Ninth

and Tenth Circuit Court of Appeals appear to adopt a

reasonable time standard, while the Second and

Sixth Circuits have endorsed an actual time

requirement.13 But partitioning in this way is overly

Searching for a toehold in this Circuit, the Secretary relies

on Williams v. Tri-County Growers, Inc., involving estimating

hours worked by farm laborers in the fields. 747 F.2d 121

(3d Cir. 1984). The appellate court held that the employers’

estimation system failed to maintain the accurate records

required under Section 11(c) of the FLSA. Tri-County Growers,

although relevant insofar as it articulates an employer’s recordkeeping requirements, does not settle the actual versus reasonable time standard debate.

Compare Alvarez v. IBP, Inc., 339 F.3d 894, 914 (9th Cir.

2003), aff’d on other grounds, 546 U.S. 21 (2005) and Reich v.

IBP, Inc., 38 F.3d 1123, 1127 (10th Cir. 1994) with Brock v. City

of Cincinnati, 236 F.3d 793, 903 (6th Cir. 2001) and Holzapfel v.

Town of Newburgh, N.Y., 145 F.3d 516, 528 (2d Cir. 1998). The

Eighth Circuit Court of Appeals in Lopez v. Tyson Foods, Inc.

briefly discussed the split where the jury instructions provided

that “only the time reasonably spent [on pre-shift or post-shift

activities] is compensable” before finding that the employees

failed to preserve the jury instruction challenge on appeal. 690

F.3d 869 (8th Cir. 2012). Reviewing the instructions only for

clear error, the appellate court did not disturb the instructions

given in the trial court; nor did it reach the question of the

36a

reductive. That is because no circuit court has

endorsed the reasonable time standard after Alvarez

was issued.14

Moreover, when those courts that have endorsed a

reasonable time standard, it was in the context of

fashioning a damages award when there were no

records of actual compensable time worked. The

circuit “split” disappears when one considers the

difference between liability and damages. In Alvarez

v. IBP, Inc., the Ninth Circuit affirmed the district

court’s decision to calculate compensable time on the

“basis of a reasonable time” as “within the district

court’s discretion.” 339 F.3d 894, 914 (9th Cir. 2003),

aff’d on other grounds, 546 U.S. 21 (2005). Although

the Tenth Circuit in Reich v. IBP, Inc. discussed a

reasonable time measure for calculating back pay

damages, the resulting permanent injunction obligated the defendant to “implement recordkeeping

practices sufficient to record the time spent by each

employee in performing pre-shift and post-shift

activities found to be compensable under the Act.”

Garcia v. Tyson Foods, Inc., 474 F. Supp. 2d 1240,

1248 (D. Kan. 2007) (discussing 38 F.3d 1123 (10th

Cir. 1994)); Jordan v. IBP, Inc., No. 3:02-1132, 2004

WL 5621927, at *13 (M.D. Tenn. Oct. 12, 2004)

(discussing same). So put, the Tenth Circuit was not

endorsing an employer’s own “reasonable” calculation

of work in perpetuity.

correct calculation method, although it did note the absence of

existing precedent endorsing either method.

Contrary to East Penn’s claim, the district court decisions

endorsing the reasonable time standard that East Penn cites to

were not all issued after Alvarez. Doc. No. 155-1 at 20.

37a

Within this Circuit, East Penn interprets Lugo v.

Farmer’s Pride Inc. to “embrace” a reasonable time

standard. No. CIV.A. 07-0749, 2011 WL 2550376

(E.D. Pa. June 23, 2011). It is true that Lugo

permitted the defendant’s expert to present evidence

“to assist the jury in determining the reasonable

amount of time that Defendant’s employees spend on

certain activities at the poultry production plant,

including donning, doffing, sanitizing, washing, and

walking.” Id. at *1. But finding that the expert’s

methodology is admissible for consideration is not a

ruling on the proper standard for measuring time

worked.

In each of these cases, the courts relied on reasonable estimations as a proxy to reconstruct the amount

of time the employees spent because there were no

time records. It does not absolve an employer of its

obligations under the FLSA to record and compensate

for actual time. 29 U.S.C. § 211(c).15

Indeed, recent donning and doffing cases have

held actual time is the appropriate standard because

it more faithfully adheres to precedent and the

As for the remainder of the district court opinions relied on

by East Penn, the Court finds that these cases re-affirm the

proposition that employees must be compensated for the actual

time they worked. See, e.g., Atbanese v. Bergen Cty., N.J., 991

F. Supp. 410, 426 (D.N.J. 1997) (ordering plaintiff to be

compensated “for the actual time they spent . . . provided

plaintiffs show that such time was reasonable”); Bull v. United

States, 68 Fed. Cl. 212, 227-28 (Fed. Cl. 2005) (where employer

has failed to maintain accurate records, the time claimed by

plaintiffs must be reasonable); Reich v. IBP. Inc., No. CIV. A.

882171, 1996 WL 137817 (D. Kan. Mar. 21, 1996), aff’d sub

nom. Metzler v. IBP, Inc., 127 F.3d 959 (10th Cir. 1997) (parties

used reasonable amount of compensable time where employer

failed to keep accurate records of pre- and post-shift activities).

38a

statutory purposes of the FLSA. See, e.g., Abadeer v.

Tyson Foods, Inc., 975 F. Supp. 2d 890, 904 (M.D.

Tenn. 2013) (holding that Tyson’s reasonable time

standard is wrong “[a]s a legal matter” and that

neither the DOL regulation [regarding the continuous

workday rule], nor the Supreme Court’s recent

affirmation of it in Alvarez, qualifies the rule with a

reasonableness standard”); Helmert v. Butterball

LLC, 805 F. Supp. 2d 655 (E.D. Ark. 2011) (holding

that the policy of paying for six minutes a day to don

and doff did not comply, as a matter of law, with

the FLSA); Smith v. Safety-Kleen Sys., Inc., No. 10 C

6574, 2011 WL 1429203, at *5 (N.D. 111. Apr. 14,

2011) (finding that employee who presented sufficient

evidence that employer did not pay based on actual

time spent donning and doffing may violate FLSA’ s

overtime requirements).

East Penn seizes on certain language in Mt.

Clemens that comments on the unfairness and

impracticality of compensating employees who take

“roundabout journeys [to their workstation] for

purely personal reasons.” Mt. Clemens, 328 U.S. at

692. East Penn’s argument is pragmatic and, for that

reason, tempting. But it is not legally sound. Theoretically, a worker could arrive well in advance of

his shift, don his uniform—thereby initiating the

continuous workday—then lounge about for some

extended amount of time, and claim compensation for

that leisure time. The Court is certainly mindful of

this possibility. To the extent East Penn is fearful of

excess idling, it can implement policies to manage the

work performed during the continuous workday. But

speculation that an intrepid, self-indulgent employee

might take advantage of the legal standard cannot

support prophylactically chiseling wages.

39a

Beyond persuasive jurisprudence, the Court can

also consider the Secretary of Labor’s and the Wage

and Hour Division’s rulings, opinions, and interpretations as they “constitute a body of experienced and

informed judgment.” Mabee v. White Plains Pub. Co.,

327 U.S. 178, 182 (1946) (citing Skidmore v. Swift &

Co., 323 U.S. 134, 140 (1944)).

Support for the actual time standard appears in

Department of Labor regulations, including one that

East Penn relies on. Although 29 C.F.R. § 785.48(a)

does not obligate an employer to use time clocks,

for those that do—like East Penn—the regulation

discourages discrepancies between clock records and

“actual hours worked.” That is because gaps in those

time values “raise a doubt as to the accuracy of the

records of the hours actually worked.”

In what has pre-occupied much of the parties’ postsummary judgment briefing here, the parties have

submitted dueling notices of supplemental authority

from prior DOL interpretations and guidance. Each

side claims they are providing the clean, unambiguous answer. The Court cannot agree. The stacks of

briefing on competing interpretations alone suggest

the answer is not so obvious. So, the Court gives

minimal probative value to these “authorities.”

The Secretary cites to a 2001 Opinion Letter from

the Wage and Hour Division, which it argues

establishes the DOL’s endorsement of actual time. In

response to whether an employer could permissibly

pay all employees based on an average amount of

time that all employees work, the DOL responded

that “company must record and pay for each employee’s actual hours of work, including compensable

time spent putting on, taking off and cleaning his or

her protective equipment, clothing or gear.” Opinion

40a

Letter Fair Labor Standards Act (FLSA), 2001 WL

58864, at *2.16

East Penn relies on the DOL’s Wage and Hour

Division Field Operations Handbook for what it

contends supports a reasonable time standard.

Courts have found that the Handbook lacks the force

of law and is not entitled to deference under Chevron

U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 844-45 (1984). See, e.g., Morgan v.

On September 2, 2020, East Penn filed a second notice of

supplemental authority to attach a final rule published by the

DOL on August 28, 2020. Doc. No. 238. East Penn argues that

the new rule (which took effect on September 28, 2020) voided

the January 15, 2001 DOL Opinion Letter upon which the

Secretary relies as support for an actual-time standard.

East Penn notes that the January 15, 2001 Opinion Letter is

conspicuously absent from the DOL’s web archive. Doc. No. 238

at 2. The new Final Rule provides that any document not posted

to its website is considered withdrawn. For this reason, East

Penn argues that the Opinion Letter must be considered

withdrawn. The Secretary responds that, regardless of whether

the Opinion Letter currently applies, it was issued around the

time East Penn implemented its written policies in 2003 and in

2016. So, it is relevant for the time period at issue.

On September 29, the Secretary filed a notice to address the

state of the DOL’s guidance, including an Opinion Letter

and Field Assistance Bulletin issued last month. Doc. No. 244.

The Secretary asserts that, since 1995, the DOL’s guidance has

consistently been to compensate for “all hours actually worked.”

Per a 1995 Opinion Letter, employers cannot average out an

estimate of time worked and comply with overtime requirements of the FLSA. And, as recently as August 31, 2020, the

DOL published an opinion letter advising that employers must

pay overtime “for all hours actually worked.”

Moreover, even adopting East Penn’s argument that the

August 2020 Final Rule explicitly provides for “reasonable”

compensation—which it does not—the Court finds nothing that

makes this rule retroactive.

41a

Family Dollar Stores, Inc., 551 F.3d 1233, 1275 n.65

(11th Cir. 2008); Chao v. Barker Bros., Inc., No. CV

04-1764, 2005 WL 8174446, at *9 (W.D. Pa. Nov. 22,

2005). However, the Handbook may be considered to

the extent it offers persuasive guidance. Skidmore v.

Swift & Co., 323 U.S. 140 (1944); Zellagui v. MCD

Pizza, Inc., 59 F. Supp. 3d 712, 716 n.2 (E.D. Pa.

2014) (collecting cases).

The Handbook authorizes employers to “set up

a formula by which employees are allowed given

amounts of time to perform clothes changing and

washup activities, provided the time set is reasonable

in relation to the actual time required to perform

such activities.” Dep’t of Labor Wage and Hour

Division, Field Operations Handbook (“FOH”) § 31b01(a)

(Sept. 19, 1996), https://www.dol.gov/agencies/whd/

field-operations-handbook/Chapter-31#B31b01 (last

accessed July 23, 2021). To the extent the Court

considers the Handbook, it is at most of little

relevance. That is because the cited provision applies

where a collective bargaining agreement governs but

is silent whether clothes changing and wash-up time

should be included in hours worked. 17 See FOH

In its Notice of Supplemental Authority, East Penn

produced a 1956 DOL Opinion Letter stating that an employer

could use a “reasonable” formula to calculate compensable preand post-shift activities. Doc. No. 223. East Penn argues that

the reasonable formula was “ultimately memorialized in Section

31b011 of the FOH” and not conditioned on the existence of a

CBA. The Court disagrees that this provision of the FOH

applies whether or not the employer and employees have

entered into a CBA. The current version of the FOH (at least

since 1996) has slotted the formula clause under the CBA

header and specifically provided that where the collective

bargaining agreement is silent, the employer may use a reasonable formula. Endorsing East Penn’s interpretation would

require the Court to disregard the structure and logical rela-

42a

§ 31b01 (entitled “Clothes changing and washup time

where collective bargaining agreement makes no

mention of practice.”). CBAs are a means of ordering

a labor relationship between employer and employees

through the private law. William F. Walsh Elec.

Const., Inc. v. Bhd. of Elec. Workers, Loc. Union 98,

587 F. Supp. 979, 982 (E.D. Pa. 1984) (citing Nolde

Brothers, Inc. v. Local No. 358 Bakery and Confectionery

Workers Union, 430 U.S. 243, 256 (1977) (Stewart, J.

dissenting) (“A collective-bargaining agreement erects

a system of industrial self-government”). Here, there

is no CBA for East Penn employees.

But even if a CBA were in place, East Penn relies

on version of the FOH from 1996. The later-in-time

2001 Opinion Letter from the DOL states that a

company must record and pay for actual hours of

work.18

Finally, the Supreme Court has consistently held

that the FLSA should be liberally construed in favor

of employees. Mitchell v. Lublin, McGaughy &

Assocs., 358 U.S. 207, 211 (1959); American Future

Sys., 873 F.3d at 426 (“The FLSA is a humanitarian

tions of the parts of the FOB. Accord ANTONIN SCALIA & BRYAN

A. GARNER, READING LAW 145 (2012) (discussing the “wholetext” canon).

East Penn also relies on DOL regulations which state that

employers are not even required to use time clocks, and, even if

they are used, the swipe time records may be disregarded if they

do not match actual working time. The FOH acknowledges this

practice, known as long-punching, by recognizing that time

records may show elapsed time greater than the hours actually

worked. This happens if “an employee came in early for personal

convenience and did no work prior to the scheduled beginning

time” or “remain[ed] after their actual quitting time.” But,

because East Penn admits the swipes do not mirror working

time, the Court fails to see the relevance of “long-punching” here.

43a

and remedial legislation . . . .”). The actual time

standard effectuates this employee-centric policy

goal, incentivizing employers to comply with the

FLSA’s record-keeping requirements while guaranteeing that employees are appropriately compensated.

Accordingly, the Court grants summary judgment

in the Secretary’s favor on this point. It is improper

as a matter of law for East Penn to pay an estimated

amount of time for compensable pre- and post-shift

activities, as they are properly part of the continuous

workday. To the extent that the concept of “reasonableness” permeates this case, it is limited to the

calculation of damages once liability is established.

To be sure, the Court’s holding today does not

absolve the Secretary, or any FLSA plaintiff, from the

burden of establishing that the employees were not

compensated for pre- and post-shift work. See Section

II.D, infra (discussing the burden shifting under

Mt. Clemens applies at the damages phase, not when

establishing liability). Rather, the Court holds that

the standard for compensable time is “actual” time,

not “reasonable” time.

C. FLSA Recordkeeping Violation

Building from the position that the correct

standard of compensable time is “actual” time, the

Secretary next asks this Court to find that East Penn

has violated its recordkeeping obligations under the

FLSA because it does not have any records establishing the actual time spent on pre-and post-shift

activities. At oral argument, East Penn conceded that

it did not keep recorded measurements of each

employee’s actual time.

Section 11(c) of the FLSA requires employers to

“make, keep, and preserve” accurate records of their

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employees’ “wages, hours, and other conditions and

practices of employment.” Pay records must include

hours worked per day and week, the amounts paid to

each employee, and the daily starting and stopping

time of individual employees. 29 C.F.R. §§ 516.2(7),

516.2(8); 516.6(a)(1). The significance of the recordkeeping requirement is its effect on the burden of

proving liability. When an employer’s records are

inadequate, an employee need only show that he

“performed work for which he was improperly compensated” and produce “sufficient evidence to show

the amount and extent of that work as a matter of

just and reasonable inference.” Martin v. Selker

Bros., Inc., 949 F.2d 1286, 1297 (3d Cir. 2001). This

abbreviated standard of proof does not penalize a

worker whose employer has been derelict in his

recordkeeping duties.

As a threshold matter, the parties dispute the

meaning of adequate and accurate records. The

Secretary contends that the records that East Penn

does maintain are insufficient because there is time

not accounted for. First, he maintains that the

records of employees’ shift times undercount work

time. It is undisputed that certain uniformed

employees donned and doffed their uniforms and

showered outside of the eight-hour scheduled shifts.

Second, the clock-in and clock-out times are not

accurate because, according to the Secretary, the

record evidence shows that employees performed

compensable activities outside of this range too. And

East Penn maintains that the swipe times are used

only for attendance purposes, so the time intervals

are not probative of time worked either.

East Penn does not have records of how long it

actually takes each employee to perform the pre- and

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post-shift activities each day, although it admits that

the activities at issue are integral and indispensable

(and therefore compensable). Doc. No. 176 at 7;

see Section II.A, supra. East Penn maintains that it

is not required to record the actual time worked

because the standard is that the employer pay for

reasonable time worked. As outlined above, the Court

disagrees with East Penn’s interpretation of the

correct measure of compensable time as a matter of

law. See Section II.B, supra. So, it rejects East Penn’s

attempt to side-step a potential recordkeeping violation in this manner.

East Penn admits that the paid eight-hour shift

times “constitute[] the record of time worked.” Doc.

No. 176-1 ¶ 91(b). It maintains that the “punch-in

and punch-out” time records are irrelevant for pay

purposes because they “are used solely for attendance

purposes.” Doc. No. 176-1 ¶ 123(b). It is undisputed

that there are no records of the actual time

East Penn employees spend donning, doffing, and

showering—even though such work is compensable.

Doc. No. 176-1 ¶104(b) (admitting that “it has no

documents that establish that each uniformed

employee actually used some or all of the paid time at

the end of their shift . . . .”). Because there is no

dispute that the actual time spent on donning,

doffing, and showering were not recorded for any

employee at any time, the Court finds that the

record-keeping practices here are deficient.

East Penn also misconstrues the nature of a

recordkeeping violation. It responds that, to prove a

recordkeeping violation, the Secretary must first

show that the amount of time paid for donning,

doffing, and showering is not sufficient. Not so. The

problem here, as East Penn admits, is that it does

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not record the actual time spent on indisputably

compensable activities. So, the records that East

Penn does maintain may be an inaccurate reflection

of its employees’ work hours. It has estimated how

much it deems reasonable to complete these tasks

and compensated based on that estimation. But

recording only shift times is a recordkeeping violation

when it is not reflective of actual hours worked. Cf.

U.S. Dep’t of Lab. v. Cole Enters., Inc., 62 F.3d 775,

779 (6th Cir. 1995) (finding recordkeeping violation

where only the scheduled shift hours were recorded,

not the actual hours worked).

East Penn has not pointed to, nor is the Court

aware of any de minimis defense to a record keeping

violation. Accord Perez v. Am. Future Sys., Inc., No.

CV 12-6171, 2015 WL 8973055, at *14 (E.D. Pa. Dec.

16, 2015), aff’d sub nom. Sec’y United States Dep’t of

Lab. v. Am. Future Sys., Inc., 873 F.3d 420 (3d Cir.

2017) (granting summary judgment to Secretary on

recordkeeping claim when employer conceded that it

failed to record the times its employees logged on and

off its computer and telephone systems at its call

center locations).

Because an employer commits a per se recordkeeping violation exists when its records are inadequate, the Court grants the Secretary’s motion for

summary judgment on this issue.

D. Whether East Penn Violated the FLSA

Overtime Requirements

The Secretary also moves for a finding that East

Penn violated the FLSA’s overtime provision by

failing to compensate its uniformed employees for the

actual time spent donning, doffing, and showering.

In other words, the Court must find that no

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reasonable jury could find that East Penn did not

fully compensate its uniformed employees for the

actual time spent on these activities. Kaucher v. Cty.

of Bucks, 455 F.3d 418, 423 (3d Cir. 2006).19

Even though the Court found that East Penn’s

records are inadequate, see Section II.C, supra,

the Secretary has the burden of proving that the

employees have actually performed work for which

they were improperly compensated. Sec’y United

States Dep’t of Lab. v. Cent. Laundry Inc., 790 F.

App’x 368, 371 (3d Cir. 2019); Diabate v. MV Transp.,

Inc., No. CIV.A. 14-857, 2015 WL 4496616, at *12

(E.D. Pa. July 20, 2015) (“Although Mt. Clemens may

offer a classwide basis for proving damages, proving

liability in this case requires that [plaintiff] show

that those in the plaintiff class performed uncompensated ‘work.’”). It is only when such proof is offered

that the Secretary can take advantage of Mt.

Clemens’ burden shifting to prove damages on a

class-wide basis. Mt. Clemens does not relieve the

Secretary of the initial burden of establishing that

the employees have not been properly compensated

for liability purposes.

East Penn does not dispute that it does not

compensate for actual time spent on these activities.

That is because East Penn maintains that it pays for

what it deems a “reasonable” amount of time as part

In their most recent exchange of notices, the parties

appeared to contest whether the Secretary expanded the

damages claim beyond the time uniformed employees spent

donning, doffing, and showering. Regardless, the Secretary

moved for partial summary judgment here only as to a finding

that East Penn’s uniformed employees were not properly

compensated for those activities. So, the Court will only consider

that claim,

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of the shift time. East Penn’s undisputed pay policy

for uniformed (non-continuous operations) employees

provides for five minutes of donning time, should the

employee use the “grace period,” and ten minutes of

doffing and showering time—independent of whether

it takes employees more or less than this allotted

amount of time. But, in opposing summary judgment

as to its liability, East Penn argues that the

Secretary has failed to show that the employees’

claims exceed the time already compensated.

East Penn also asserts that the Secretary is

required to establish liability as to each employee for

whom the Secretary seeks damages. Again, not so.

As the Supreme Court recently affirmed in Tyson

Foods v. Bouaphakeo, 557 U.S. 442, 456 (2016),

representative evidence is a permissible means of

proving hours worked in an FLSA case when, as

here, the employer has failed to keep adequate

records. See also Reich v. Gateway Press, Inc., 13 F.3d

685, 701 (3d Cir. 1994) (“Courts commonly allow

representative employees to prove violations with

respect to all employees.”) (collecting cases).

In support of its motion, the Secretary relies on

(1) East Penn’s admissions, (2) employee declarations

that East Penn gathered and submitted, (3) time

study data from Dr. Radwin, and (4) East Penn’s time

clock records showing the swipe in and out time.

First, the Secretary relies on East Penn’s own

admissions that its pay practices violate the FLSA’s

overtime provision. In its responses to requests for

admission and deposition testimony from managers,

East Penn admits that it is aware that “some

employees chose to don required PPE before their

scheduled shift starting time, that “some employees

chose to shower after their schedule shift time,” and

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that management observed employees arriving at

their workstation prior to their shift time. Doc. No.

176-1 ¶¶ 96, 99-100. It is undisputed that East Penn

employees are paid for their scheduled eight-hour

shift time. Doc. No. 176-1 ¶ 88(b). So, if an employee

dons his uniform prior to the start of his shift—an

activity that East Penn does not dispute is

compensable work—East Penn admittedly does not

compensate for that time.

East Penn responds that not all employees don

uniforms and PPE prior to the start of their shift,

opting instead to use the grace period, nor are they

required to. But it undisputed that East Penn’s Time

Clock and Pay Procedures require that each employee

be at his workstation at shift starting time. East

Penn does not square this seeming inconsistency.

Rather, it relies on employee declarations that

acknowledge the existence of the grace period and

their use of it. Because the correct legal standard

is payment for “actual” work, the existence of the

five-minute grace period—whether illusory as the

Secretary contends or fully in effect as East Penn

urges—does not change the analysis. If an employee

acquires and dons his uniform prior to the start of

his shift, that employee has “suffered” work and is

legally entitled to compensation.

Second, the Secretary points to the roughly 650

declarations from East Penn employees that the

company gathered and submitted as evidence that its

employees routinely used more than five minutes for

donning activities. East Penn does not dispute the

authenticity or contents of the hundreds of these

declarations.

A cautionary note about these declarations is in

order. The Court has previously considered—and

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rejected—the Secretary’s motion to prevent East

Penn from relying on the declarations at either the

summary judgment stage or at trial. Scalia v. E. Penn

Mfg. Co., No. CV 18-1194, 2020 WL 3186213, at *1

(E.D. Pa. June 13, 2020) (rejecting the Secretary’s

request for a protective order and injunction). The

Court found that the Secretary failed to present

evidence to show that the method by which East

Penn gathered its declarations was coercive, and the

Secretary failed to present any evidence of retaliatory

conduct taken by East Penn. Id. at *6-7.

Although the Secretary previously sought to exclude

the declarations, he now maintains that overtime

violations appear on the face of the declarations that

East Penn produced. Certain employee declarants

attest to the grace period but take more than the

allotted five minutes. See, e.g., Doc. No. 176-4 at 239

¶¶ 7-8 (six minutes to don and walk to workstation

and “sometimes” uses grace period); id. at 248 ¶¶ 7-8

(eight minutes to don and walk to workstation but

“usually” uses grace period). Still others do not

acknowledge the grace period but estimate needing

more than five minutes for pre-shift work. See, e.g.,

Doc. No. 176-4 at 451 ¶ 7 (eight to nine minutes to

don and walk to workstation); id. at 971 ¶ 7 (seven to

eight minutes to change and walk to workstation).

East Penn responds that the declarants also state

that they “believe that [they] have been properly and

fully compensated for all straight time and overtime

hours associated with [their] regular production work

as well as [their] donning/doffing activities before and

after [their] regularly scheduled shift time.” So, East

Penn maintains, the employees themselves undermine the Secretary’s case. The Court is not so convinced for two reasons. First, to the extent East Penn

51a

questions the reliability of the time estimates, such a

challenge does not raise a genuine dispute of material

fact. That is because East Penn does not dispute the

fact the employees have stated that they don their

uniforms and PPE prior to the start of their shift. It

is this admission of work performed outside of the

compensable eight-hour shift that the Secretary

relies on to establish liability.

Second, at summary judgment, the Court avoids

credibility determinations as to the declarants’

beliefs. To the extent the declarations contain evidence that is unfavorable to East Penn’s case, that

evidence can nevertheless be construed against

East Penn. That is because East Penn is the party

proponent of the evidence and because it is clear that

the formats of the declarations, which each follow the

same format, were prepared by counsel.

On the basis of East Penn’s admissions and its own

declarations—the contents of which East Penn does

not dispute—the Court finds that the Secretary has

established that East Penn’s pay practices violate the

FLSA’s overtime provisions as to its uniformed noncontinuous operations employees. 20 Although the

Court finds East Penn has admitted liability as to

this subgroup of employees, that is not the end of the

inquiry. Rather, this ruling is separate and distinct

from determining whether East Penn can assert a

The Secretary moves for summary judgment as to uniformed employees. As the Court explains in detail below, see

Section III.B, infra, continuous operations employees are subject

to different pay policies, although some are required to wear a

uniform. They receive ten minutes of paid donning time at the

start of their shift and 20 minutes at the end of their shift. Doc.

No. 176-1 ¶¶ 9(b); 96(b). Dr. Radwin did not include continuous

operations employees as part of his time study.

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de minimis defense that may reduce or eliminate any

damages. See Section II.F, infra.

The Secretary also offers Dr. Radwin’s time study

as representative evidence to establish that employees

donned, doffed, and showered outside of their paid

shift times. As for end-of-shift activities, Dr. Radwin

calculated that, for the 125 uniformed employees

he studied, 11 minutes passed between leaving the

production floor and completing their last activity.

Doc. No. 176-1 ¶ 116. East Penn does not dispute

that he reported an 11-minute average, to the extent

he documented his observations. But it notes that

this figure does not account for the ten minutes of

paid time (and 20 minutes for continuous operations

employees) that its employees are allotted at the end

of a shift. Doc. No. 176 at 42. Indeed, Dr. Radwin

testified that he did not calculate a measure of

uncompensated time and acknowledged that some

number of his subjects were compensated—in whole

or in part—for those activities measured. Doc. No.

176-1 ¶ 114(b) (collecting from Radwin Depo. Tr.).

As to pre-shift activities, of the 370 uniformed

employees he chose to study, Dr. Radwin estimated

that, on average, they began their workday roughly

16 minutes before shift started. Doc. No. 176-1 ¶ 11114. East Penn does not dispute that this is the

figure Dr. Radwin reported. But it again criticizes

the reliability of this assertion, including whether

the employees’ activity actually is “integral and

indispensable”—hence, compensable—so as to start

the continuous workday.

East Penn has launched numerous challenges to

Dr. Radwin’s methodology and calculations, including

his admitted extrapolating the estimated one-plant

average to all plants and employees, the reliability of

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his methodology. The Court has already found that

these attacks go to the weight of his testimony—

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