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Employee Takes a Seat on FLSA Claim

Susan Kellar’s shift at Summit Seating, Inc. began at 5 a.m. The undisputed evidence proved that she would arrive at work between 4:15 and 4:45 a.m. to coordinate work schedules, deliver fabric to her subordinate’s work stations, make coffee, clean the work area or check fabric patterns. Ms. Kellar performed pre-shift activities for approximately eight years. She eventually quit Summit Seating then sued Summit for unpaid overtime work for the time she worked prior to 5 a.m.

Summit Seating defended on two primary grounds: that Kellar’s pre-shift activities were “de minimis” and that Summit Seating was not on notice of such activities. The trial court ruled in favor of Summit Seating on a 3rd argument, not briefed by either party: that Ms. Kellar’s activities were “preliminary,” meaning that those activities were undertaken for the employee’s convenience, not being required by the employer, and not necessary for the performance of the employee’s duties for the employer.

Ms. Kellar objected to the entry of judgment on the “preliminary” work activity issue, as that issue had not been briefed by the parties at the trial court level. The Seventh Circuit Court of Appeals held that a District Court may enter summary judgment on its own motion on an issue not specifically argued if the losing party is on notice that she has to come forward with all of her evidence. The Seventh Circuit further stated that reversal is not required in every instance of a procedural shortfall, and instead, a litigant must show that notice and opportunity to respond would have mattered.

Ultimately, the Seventh Circuit affirmed summary judgment on behalf of the employer on the basis that Summit Seating did not have actual or constructive notice of Ms. Kellar’s pre-shift activities. Interestingly, Kellar clocked in early and argued that Summit Seating should have known that she was performing pre-shift work. Summit Seating argued that most employees were in the habit of punching in early, but then socialized rather than perform principal work on behalf of the employer until their shifts began. Further, Summit Seating set forth evidence that Kellar, a manager herself, was aware of Summit’s policy prohibiting overtime work absent express permission, and that once, Ms. Kellar even reprimanded another employee for clocking in early.