Opposition Brief — Harold Levinson Associates, Inc. v. Chao

8

across pay periods. Pet. App. 20a-2la. There is, there-

fore, no need for this Court to consider that question.

2. Petitioners’ remaining arguments are equally

without merit and do not warrant further review.

a. Petitioners suggest (Pet. 22-23) that failing to

credit extra compensation against overtime liability is

an enhanced penalty designed to punish the employer,

rather than compensate the emplovee. The FLSA, how-

ever, specifies with careful precision the circumstances

in which an employer is entitled to a credit; here. peti-

tioners simply did not establish that they were entitled

toone. Instead, the district court found (Pet. App. 28a-

29a), and the court of appeals affirmed, that petitioners

“had failed properly to record overtime hours and pay

proper compensation for such hours,” id. 17a; that peti-

tioners’ “violations were ‘willful’ within the meaning of

29 ULS.C. § 255(a)," id. at 21a; and that they “do not sat-

isfy the good faith reasonable belief exception to liqui-

dated damages provided by 29 U.S.C. § 260," ibid. See

id. at 33a-35a, 38a.” The resulting award was no less,

but also no more, than the statute requires, and clearly

~ Liquidated damages are net a penalty, but compensation to the

employees for the delay in receiving the wages due as a result of the

employer's FLSA violation. See /lemman ve RSR Sec. Servs, Ltd... 172

Badd 132, 142 (2d Cir, 1999) Ceiting Orerivight Motor Transp. Co. v.

Missel, 316 US. 572, 583-84 (1942). Courts have discretion to deny the

award of liquidated damages ow/y if the employer shows that it acted

in subjective “good faith” and had objectively “reasonable grounds” for

believing that its conduet did not violate the FLSA. 20 U.S.C. 260: see

also RSPR See. Sevres, 172 F.3d at 142. The emplover hears the burden

of proving both good faith and reasonable grounds, and the burden is

a heavy one; double damages are the norm. 172 F.5d at 142: Reich v.

Southern New Bugqlawd Telecom. Corp., 121 Rodd OS. 71 (2d Cir.

1997): Brock v. Wilamowshy, S35 FBd 11. 19 (2d Cir. LOST).

Y

does not exact an extra-statutory penalty from petition-

ers.

b. Petitioners contend (Pet. 23) that the “work pe-

riod limitation” in this case is particularly inappropriate

heeause the damages are averaged over work periods

without accounting for any potential business changes

over the time period in question. The district court, in

its second decision, and the court of appeals, in its sec-

ond summary order, considered that fact-bound argu-

ment and both courts soundly rejected it. Pet. App. 4a

(characterizing petitioners’ new evidence as “unreason-

able”), Lla-12a (finding petitioners’ expert witness testi-

mony regarding the growth of Levinson’s business “en-

tirely unpersuasive’). Petitioners’ attempt to relitigate

that case-specific issue here is unpersuasive and unwor-

thy of this Court’s review. See Goodman v. Lukes

Steel Co., 482 U.S. 656, 665 (1987) (SA court of law, such

as this Court is, rather than a court for correction of

errors in factfinding, cannot undertake to review con-

current findings of fact by two courts below in the ab-

sence of a very obvious and exceptional showing of er-

ror.”).

¢. Petitioners suggest that the court below disre-

garded a stipulation between the parties regarding the

amount that petitioners paid their emplovees. Pet. 24."

Petitioners interpret the stipulation to mean that the

Secretary agreed that they had “paid $529,000.00 in ex-

cess premium overtime wages during the ADP period.”

Pet. 25. The stipulated facts, however, as reflected in

the district court's first order (Pet. App. 26a-27a), con-

tain no such agreement. Rather, the parties stipulated

The stipulations entered into between the parties and listed in the

pretrial order (see Pet. 25) are incorporated into the findings of fact by

the district court in its April 20. 2001, judgment. Pet. App. 24a-27a.

10

that the Secretary’s transcriptions of petitioners’ payroll

records were accurate, With some exceptions, as to the

gross wages paid, the “punch detail report hours,” and

the hourly rates paid to emplovees. /bid. Moreover, the

court of appeals did not improperly disregard any stipu-

lation, but rejected petitioners’ reasoning, concluding,

for the reasons previously discussed, that any “pur-

ported ‘overpayments’ * * * provide no basis for a

credit.” /d. at 21a.

3. Petitioners argue (Pet. 26-30) that the lower

courts’ damages calculations have not been demon-

strated to be “a matter of just and reasonable infer-

ence,’ in accordance with this Court’s instructions in

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687

(1946). By its terms, that argument is not worthy of

further review because “the asserted error consists of

erroneous factual findings or the misapplication of a

properly stated rule of law.” Sup. Ct. R. 10.) In any

event, the courts below correctly concluded that the Sec-

retary met her prima facie burden to establish as a mat-

ter of Just and reasonable inference the amount and ex-

tent of work that employees had performed without be-

ing properly compensatedin accordance with the FLSA.

Pet. App. 4a, 18a-19a, 36a. Petitioners failed to rebut

that inference. /d. at da, Sa, 57a.

As recognized by the court of appeals in this case,

under the FLSA, “[t}he burden is on an employer prop-

erly to record hours, and an employee need only as a

prima facie matter present an estimate of damages that

is satisfactory as ‘a matter of just and reasonable infer-

ence.” Pet. App. 18a (quoting Wt. Clemens, 528 U.S. at

686-687). Emplovees who have not been properly com-

pensated are not required to recreate with precision the

record of hours worked which their employer—in viola-

1]

tion of law—failed to keep. See Mt. Clemens, 328 U.S.

at 687. Instead, the burden shifts to the emplover to

provide evidence of the precise number of hours worked,

or alternatively, the employer may provide evidence

demonstrating that the plaintiff's estimate was unrea-

sonable. See Pet. App. 18a (quoting Reich v. Southern

New England Telecomm. Corp., 121 F.3d 58, 67 (2d Cir.

1997)). In this case, both the district court and the court

of appeals accepted the Secretary's estimate of dam-

ages,’ based on credible testimony from employees of

Levinson and the time-clock records from the ADP pe-

riod, Pet. App. 18a-19a, 28a-30a. The court of appeals,

in its second summary order, noted that the district

court, in considering the case on remand, allowed peti-

tioners to present new evidence regarding the reason-

ableness of the number of overtime hours worked by

Levinson’s employees. /d. at 3a-4a. Despite the oppor-

tunity for a “second bite at the apple,” petitioners failed

to persuade either court below that the estimated dam-

ayes in this case were unreasonable. /d. at da.

As this Court stated nearly 60 years ago in a dispute

over unpaid overtime wages: “The emplover cannot be

heard to complain that the damages lack the exactness

and precision of measurement that would be possible

‘had he kept records in accordance with the require-

In its first summary order, the court of appeals affirmed the dis-

trict court's judgment regarding the Secretary's estimation of damages

inthe ADP period. Pet. App. 19a. It remanded the case for the district

court to recalculate the damages, for all but three employees, in the

Paychex period. /d. at 1a-20a, 22a. The Secretary recalculated the

Pavchex-period damages in accordance with the instructions given by

the court of appeals; the district court accepted the Secretary's recal-

culations and entered judgment against Levinson for the revised dam-

ages total. Jd. at Sa. 13a. The court of appeals affirmed. Jd. at a.

| fae

ments * * * ofthe[FLSA].” Mt. Clemens, 328 U.S. at

688. In this case, the courts below, after fully con-

sidering and rejecting the same methodological argu-

ments that petitioners are making here, properly con-

cluded that the Secretary established as a matter of just

and reasonable inference the amount and extent of work

that employees had performed without being properly

compensated for overtime in accordance with the FLSA.

Further review of those arguments is not warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Path D. CLEMENT

HowAakp M. RADZELY Solicitor General

Solicitor of Labor

ALLEN H. FELDMAN

Associate Deputy Solicitor

NATHANIEL LSPILLER

Senior Coausclor

TAMARA SUE KILLION

Atloruvey

Deportieat of Labor

AUGUST 2005

FILED

SEP 19 2005

No. 04-1602

| SUPREME COURT, U.S.

IN THE

Antted States Supreme Court

peed

HAROLD LEVINSON ASSOCIATES, INC.,

A Corporation, and EDWARD BERRO,

Individually and as President,

Petitioners,

ELAINE L. CHAO,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

PETITIONERS’ REPLY TO BRIEF IN OPPOSITION

ROBERT E. GOLDMAN Andrew M. Lankler

Counsel of Record Idelle R. Abrams

20 East 9th Street LANKLER & CARRAGHER, LLP

New York, New York 10003 845 Third Avenue, 17th Floor

917-545-7497 New York, New York 10022

212-812-8910

Attorneys for Petitioners

TABLE OF CONTENTS

STATEMENT

ARGUMENT

POINT I

THE PETITION SHOULD BE GRANTED

TO RESOLVE THE CONFLICT AMONG

THE CIRCUIT COURTS OVER WHETHER

THE ACT ALLOWS AN EMPLOYER TO

OFFSET EXTRA COMPENSATION PAID

ACROSS WORK PERIODS AGAINST

OVERTIME LIABILITIES OWED

POINT II

THE COURTS BELOW FAILED TO

CALCULATE DAMAGES AS A MATTER

OF JUST AND REASONABLE INFERENCE ..

CONCLUSION

i}

TABLE OF AUTHORITIES

Federal Cases

Anderson v. Mt. Clemens Pottery Co.,

328 U.S. 380 (1946)

Bay Ridge Operating Co. v. Aaron,

334 U.S. 446 (1948)

Lanza v. Sugarland Run Homeowners Assoc., Inc.,

97 F. Supp. 2d 737 (E.D. Va. 2000)

Reich v. Southern New England Telecomm. Corp.,

121 F.3d 58 (2d Cir. 1997)

Walling v. A.H. Belo Corp.,

316 U.S. 624 (1942)

Statutes

Fair Labor Standards Act of 1938,

29 U.S.C. § 201, et seq

29 U.S.C. § 207(e)

29 U.S.C. § 207(f)

29 U.S.C. § 207(h)

29 U.S.C. § 216(b)

S. Ct. R. 10

STATEMENT

A. This case raises an urgent question of public policy

regarding whether an employer that, over a given period of

time, absent any complaints by a single employee and prior to

any enforcement action by the Department of Labor or any

other enforcement agency, fully compensates its employees at

premium rates higher than required by statute or the collective

bargaining agreement should not be given credit for those pay-

ments in the event a subsequent claim is made for underpay-

ment. The Fair Labor Standards Act of 1938 (“FLSA” or the

“Act’”), 29 U.S.C. § 201, et seg., was enacted to, inter alia,

compensate employees for the extra wear and tear of working

more than 40 hours in a work week, not to provide a bureau-

cratic minefield for employers.

The application of the Act, including when the Department

of Labor (the “Department”) seeks to enforce the overtime

provisions of the Act, concerns the sole question of whether

the subject employees have been properly compensated. If the

employees have been properly compensated by their employ-

er for their overtime hours, whether the compensation was

paid the following week, the following month or even the fol-

lowing year, the employer should be found to have complied

with the express terms of the Act. Indeed, the Act, which is

silent as to when ccmpensation is required, does not impose

any different requirement and there is no purpose served under

the Act to hold otherwise. Thus, the failure to credit the

employer’s actual payment of excess compensation sufficient

to satisfy all of the overtime payments due and owing to its

employees and to instead require the employer to pay such

sums a second or third time is contrary to the purpose of the

Act and the remedies provided under Section 216(b), which

are compensatory only and solely intended to make the

employee whole, not to punish the employer.

More critically, it is antithetical to public policy to fail to cred-

it the employer for those sums which it voluntarily paid to its

employees prior to the commencement of any litigation or enforce-

2

ment action. It is to the employees’ benefit—as well as the

Department’s—that employers make such voluntary payments to

their employees. If, however, employers do not get credit for

those payments that make their employees whole, assuming

arguendo that they had failed to pay for overtime previously

due, there will be no incentive for them to do so voluntarily.

In this case, the Department does not dispute that Petition-

er Harold Levinson Associates, Inc. “HLA” or “Petitioner”)

actually paid its employees $529,000 in overtime wages!

during the ADP period’ over and above the overtime wages

it was obligated to pay by statute and the collective bargaining

agreement. However, the Department argues, relying upon the

opinions in the courts below, that HLA should not get the ben-

efit of the actual payments it made to its employees and these

monies should not be credited as an offset against overtime

wages that the lower courts found were owed to HLA’s employ-

ees for the earlier PCX period. This is contrary to the language

of the statute and the policy it was enacted to promote.

Given that there is no credible contention that HLA did not

pay said additional $529,000 for overtime hours, it belies cred-

ibility to suggest that said sum of money should simply get lost

and not even be considered, when imposing a penalty that dou-

| The Department relies on the erroneous statement of the court of

appeals that Petitioners did not present evidence that these monies were

paid “for any of the purposes specified at 29 U.S.C. § 207(h),” Pet App. 3a,

but does not argue that these monies were not paid in compensation for

overtime hours worked. Moreover, contrary to the statement in the opinion

below, Pet. App. 3a and n.1, the evidence in the record before the Court of

Appeals demonstrated that HLA made these payments for overtime work

performed by its emp! ~’ees and thus fall squarely within the provisions of

§ 207(e)(S), (6) and (7) «s incorporated by § 207(h).

2 The time period at issue, May 1992 through December 1994, was

divided into two subperiods based solely upon the payroll services compa-

ny and recordkeeping mechanics utilized by HLA during those subperiods:

the “PCX period” ran from May 1992 through September 1993 and the

“ADP period” ran from October 1993 through December 1994.

3

bles the employees’ compensation and provides a third time that

each employee is fully paid for every overtime hour worked.

B. This Court has directed that the calculation of damages

under the Act must be determined as a matter of just and rea-

sonable inference. The employer may rebut the Department's

calculations by demonstrating that inferences upon which the

calculations are based are unreasonable. In this case, the

Department and the courts below based their calculations

upon the testimony of employee witnesses that they worked

essentially the same amount of overtime throughout the peri-

od at issue. Petitioners demonstrated that this testimony was

statistically and factually incorrect based upon the time clock

records for the ADP period that were admitted to be accurate,

and submitted further statistical and economic evidence that

definitively demonstrated that the Department’s calculations

were unreasonable because they failed to account in any way

for the dramatic growth in the company between the begin-

ning of the period in issue and the end of the period in issue.

The trial court found that notwithstanding that the volume of

product and sales volume in dollars increased by almost 50%

from one period to the next, that it was a matter of just and rea-

sonable inference that the same number of employees could

perform 50% more work in the same amount of hours.

Notwithstanding the factual, logical, statistical and economic

evidence submitted by Petitioners, which demonstrated that

the employee witness testimony was inaccurate and unreli-

able, the courts below rejected Petitioners’ evidence that the

Department’s calculations were unreasonable. This determina-

tion is in blatant disregard of this Court’s direction in Ander-

son v. Mt. Clemens Pottery Co., 328 U.S. 380 (1946), and

requires review.

4

ARGUMENT

POINT I

THE PETITION SHOULD BE GRANTED TO

RESOLVE THE CONFLICT AMONG THE CIRCUIT

COURTS OVER WHETHER THE ACT ALLOWS

AN EMPLOYER TO OFFSET EXTRA COMPENSA-

TION PAID ACROSS WORK PERIODS AGAINST

OVERTIME LIABILITIES OWED

The Department, in its opposing brief, sidesteps the ques-

tion that has resulted in differing opinions by the Circuit

Courts concerning whether premium payments made for over-

time wages may be credited across time periods. See Pet. 19-

20. In doing so, the Department fails to appropriately address

the question of whether HLA should receive a credit for the

premium payments it made to its employees during the ADP

period, against any liability it may owe for overtime incurred

during the PCX period. The Department does not address the

language of the statute, the plain reading of which permits the

credit of premium payments without limiting such credit to the

work period in which they were paid, and the Department does

not address the blatant absence in both the statute and the reg-

ulations of any requirement limiting an offset of premium pay-

ments to the work period in which the overtime liability was

incurred; an absence made all the more conspicuous when

contrasted with other sections of the statute in which such

work period language is expressly included. The Department

also does not address the provision in the Secretary’s own

Operations Handbook which allows for offset without impos-

ing a work period limitation. Finally, the Department does not

address the anomalous situation that currently exists due to the

discord and inconsistencies in the rulings by the Circuit Courts

considering the issue of allowing such offsets and credits.

Significantly, and the Department does not and cannot

deny this fact, HLA paid an extra $529,000 in overtime pay-

5

ments to its employees during the ADP period over and

above the overtime payments due under the statute and the

collective bargaining agreement.’ So, in its response, the

Department seeks simply to ignore the fact that HLA actual-

ly paid—and its employees actually received—these extra

payments at premium rates for their overtime work, and were

thus fully compensated for any unpaid overtime accrued dur-

ing the PCX period.* The Department seeks to accomplish

this evasive maneuver by relying on the Court of Appeals’

erroneous statement that there was no evidence in the record

that the premium payments HLA made to its employees “‘was

paid for any of the purposes specified at 29 U.S.C. § 207(h)(2).’”

Pet. Opp. 6 (quoting Pet. App. 3a). However, this statement

by the Court of Appeals is clearly erroneous because it dis-

regarded the clear evidence in the record that HLA made

these premium payments specifically for the payment of over-

time and that they were identified as such.

The Court of Appeals’ statement was also clearly erroneous

because it was predicated on a failure to properly apply the

provisions of § 207(e) in reviewing these payments. Section

207(e) provides that all monies paid to an employee are

included in the calculation of the employee’s regular rate of

pay, unless specifically exempted under one of the enumerat-

ed exceptions set forth in its subparagraphs. 29 U.S.C. § 207(e).

The Department does not claim that the extra payments, total-

ing $529,000, which HLA actually made to its employees,

must be included in its calculation of the regular rate of pay for

the respective HLA employees, and did not actually include it

in its calculations. However, in order to exclude those monies,

3 During the trial on remand, the Department disputed certain small

sums included in the overall figure; however, these sums are de minimus.

4 Most, although not all, of the employees to whom overtime com-

pensation was arguably due for the PCX period were also employed and

received premium compensation in excess of the overtime required by the

statute or collective bargaining agreement during the ADP period.

6

they must fall into one of the exceptions provided in § 207(e);

neither the Department nor the courts below identify the basis

on which these monies were excluded or claim that the pay-

ments were excluded because they fell into one of the subsec-

tions of § 207(e) other than subsections (5), (6) or (7). Thus the

Department’s position, as well as the decision beiow, is unten-

able because it leaves those monies hanging in limbo—not

included in calculating the regular rate of pay and not except-

ed because they are captured in one of the subsections to

207(e}—a position that is improper under the statute.

Moreover, the Department’s position is in stark contrast to

public policy and economic interests which preclude penaliz-

ing an employer that voluntarily pays its employees monies in

excess of the amounts required under the statute or collective

bargaining agreement. The FLSA was enacted “to compen-

sate those who labored in excess of the statutory maximum

number of hours for the wear and tear of extra work and to

spread employment through inducing employers to shorten

hours because of the pressure of extra cost.” Bay Ridge Oper-

ating Co. v. Aaron, 334 U.S. 446 (1948). Where an employee

has received the actual compensation due, as envisioned by

the statute, it is inequitable to find that the employer acted in

violation of the Act. This is especially true here where Peti-

tioner voluntarily paid more than required by the collective

$

The monies paid by an employer must be accounted for under one

of the subsections of 207(e) or be included in the monies used to calculate

the regular rate of pay, regardless of whether the employer a/so contends

that it made its premium overtime payments pursuant to a Be/o plan or

other prepayment plan to allow a steady income stream for an employce

with irregular hours. 29 U.S.C. § 207(f); Walling v. A.H. Belo Corp., 316

U.S. 624 (1942). Thus, contrary to the Department’s suggestion, Pet. Opp.

6 n.4, the fact that Petitioners initially argued that there was a valid pre-

payment plan does not affect the separate question of how monies paid to

an employee are classified under 207(¢), or HLA’s claim, which is sup-

ported by the evidence, that the premium compensation it paid falls under

the provisions of 207(e)(5)-(7).

J

bargaining agreement and the statute to ensure that its

employees would not suffer a reduction in their standard of

living as the result of the terms of a collective bargaining

agreement. Moreover, the failure to credit an employer when

it has made compensation, even if it was made during a dif-

ferent work period, is against public policy because it dis-

courages employers from correcting past errors. For example,

if an employer discovers an accounting error from a previous

period, public policy dictates that the employer should correct

the error and ensure that the employee is properly compen-

sated. If, however, the employer may be charged with a vio-

lation under the Act in any case and charged with paying that

money a second or third time, it will have no incentive to

make the adjustment upon discovery for fear of being man-

dated to make additional payments.

Furthermore, the damages awarded below are beyond the

remedy provided by the statute in section 216(b), which is

solely compensatory and intended to provide the employee

with the funds that were due but had not been paid. 29 U.S.C.

§ 216(b); Lanza v. Sugarland Run Homeowners Assoc., Inc.,

97 F. Supp. 2d 737 (E.D. Va. 2000). If the monies due have

already been paid, whether during the same work period or a

later work period, and the employee has been made whole,

then any requirement to pay those monies again is simply

punitive. However, punitive damages are not available under

this section and cannot be imported into the section from other

parts of the statute because to do so would be inconsistent with

the compensatory nature of the remedies provided. /d. The

Department did not address the punitive effect of requiring

HLA to pay a second and third time monies which the docu-

ments show it had paid—and its employees had received—

long before the commencement of this action. Instead, the

Department simply referred to the finding of liability without

addressing the misapplication of § 216(b) here. Pet. Opp. 8-9.

8

The Department attempts to avoid the issue altogether

by arguing that the stipulation between the parties prior to

the commencement of the initial trial does not expressly state

that HLA paid $529,000 in premium payments for overtime

over and above the amount owed under the statute and the

collective bargaining agreement. Pet. Opp. 9-10. However,

the Department does not dispute that this figure is the incon-

trovertible result obtained by an application of the stipulated

facts upon which the parties did expressly agree.® The court

below improperly ignored the stipulation when it discounted

the stipulated facts as “assumptions that were stipulated for

trial.” Pet. App. 21a (emphasis supplied).

POINT Il

THE COURTS BELOW FAILED TO CALCULATE

DAMAGES AS A MATTER OF JUST AND

REASONABLE INFERENCE

The Court of Appeals, in its first decision, recognized that

the Department’s calculation of damages during the PCX peri-

od “unfairly penalizes the defendants” and that the Secretary’s

“actual computations of weekly hours for the PCX period”

suffered from a “lack of foundation.” (Pet. App. 21a n.3) On

remand, the lower court and Court of Appeals did not cure the

inherent deficiencies in the methodology utilized to calculate

damages, and expressly rejected Petitioners’ proffered statisti-

cal and economic methodologies that established a foundation

for the “amount and extent of [uncompensated] work as a mat-

ter of just and reasonable inference,” and that served “to neg-

ative the reasonableness of the [Department’s] inference.”

© The parties stipulated to the following facts: (1) the gross wages HLA

paid to each employee; (2) the actual number of hours each employee worked;

and (3) the hourly rate paid to each employee. Pet. Opp. 9-10. The amount of

$529,000 is derived by using the second and third figures to calculate the

amount earned by cach employee and subtracting it from the gross wages

each employee was paid, and the Department has never suggested otherwise.

9

Anderson v. Mt. Clemens Pottery Co., 328 U.S. at 687-88. The

issue here is not simply one of “erroneous factual findings or

the misapplication of a properly stated rule of law,” Sup. Ct.

R. 10, and thus is not precluded from review. Rather, the ques-

tion is whether a damage calculation can be determined to be

a matter of “just and reasonable inference” when the Court

rejected the unrebutted evidence derived from accepted scien-

tific methodologies in favor of questionable factual testimony.

The damages for the PCX period are based upon a cal-

culation importing figures from the ADP period derived

from the time clock records for that period, which the par-

ties stipulated were accurate. The importation was based

upon the witnesses’ anecdotal testimony six to eight years

after the fact that they worked “about the same number of

hours each week” during the two periods,’ Pet. App. 30a,

even though the Court of Appeals recognized, in its first

decision, that even within the same period “[t]he time-

clock records demonstrate that hours tended to fluctuate

from one week to the next.” Pet. App. 20a.

In contrast, Petitioners offered testimony based upon sta-

tistical and economic analyses of the relevant data. Petition-

ers offered unrebutted evidence that HLA’s business increased

dramatically on an annualized basis between the PCX period

and the ADP period. Before making other analyses, Petition-

ers’ experts examined whether the increase in business had an

actual effect on the amount of time each person worked in

overtime during the ADP period, based upon the time clock

records. Petitioners’ experts demonstrated that even within

the ADP period, each employee worked an average of 10%

more overtime at the end of the ADP period than he or she

had at the beginning of that 15 month period. This statistical

analysis is further evidence that the anecdotal testimony by

7

The record evidenced that not a single employee made any com-

plaint that they had not been fully paid for all overtime hours worked,

including the employee witnesses who testified at trial.