Edward Monroe v. FTS USA, LLC

(2007). L.Ed.2d 929 That means district rely contrary

courts language Franklin, Petty County v. 2007), which is inconsis- Supreme

tent with the Court’s more recent

and precedentially superior decisions

Twombly and Iqbal. reasons,

For these we reverse and re-

mand the case for further proceedings con- opinion.

sistent MONROE, Moore,

Edward Fabian

Timothy Williams, on behalf of them

selves and all others situat

ed, Plaintiffs-Appellees, USA, USA, LLC and UniTek

LLC, Defendants-Appellants.

No. 14-6063 Appeals,

United States Court of

Sixth Circuit.

Decided and Filed: June

Rehearing En Banc Denied

July 28, 2017* * Judge partic- ipation Donald recused ruling. herself from in this BRIEF:

ON SUPPLEMENTAL Colin Christman, Dougherty, D. Jonathan D. LLP, Bell, FOX ROTHSCHILD Blue Estrada, Miguel A. Pennsylvania, GIB- LLP, SON, & DUNN CUTCHER Wash- D.C., ington, William B. Appellants. Ryan, Ashby, DONATI Bryce W. LAW FIRM, Tennessee, LLP, Memphis, opinion, Rach- remanding case Srey, RASTER, hana T. NICHOLS court for further in light consideration PLLP, Minnesota, Foods, Minneapolis, v. Bouaphakeo, Adam W. Inc. 577 U.S. LLC, -, Hansen, LAW, APOLLO Minne- S.Ct. L.Ed.2d 124 (2016), Minnesota, apolis, Supreme which the Appellees. Court decided USA, opinion.

after we issued our See FTS — BOGGS, SUTTON, Monroe, U.S.-, Before: LLC v.

STRANCH, (2016) (mem.). Judges. Circuit L.Ed.2d “[0]ur

law is clear that GVR order does not STRANCH, J., opinion delivered of necessarily imply that the Supreme Court BOGGS, J., joined, which the court in and has in case, mind a different result in the SUTTON, J., joined SUTTON, part. in J. nor does it suggest prior our decision 416-25), (pp. opinion delivered a separate was Whirlpool erroneous.” In re Corp. part dissenting concurring part. Front-Loading Washer Liab. Prods. Li 2013) (col

tig., 722 F.3d cases). Rather, lecting following our task OPINION GVR this case is to “determine STRANCH, Judge. Circuit original whether our decision ... was cor rect or [Tyson] whether a compels differ Monroe, Moore, Edward Fabian and ent resolution.” Id. Fair Timothy brought Williams this Labor (FLSA) claim, on Standards Act behalf of reconsideration, Upon we find that Ty- similarly situated, themselves and others compel resolution; son a does not different USA, against employers, FTS LLC instead, Tyson’s ratification of the Mt. Cle- USA, parent company, and its UniTek mens legal framework and validation a LLC. FTS is cable-television business the use of representative support evidence for which or worked work Therefore, original our decision. consistent cable technicians. The court certi- district opinion, with that we the district AFFIRM action, as an fied the case FLSA collective court’s a certification the ease as collec- (collective- allowing other technicians tive finding action and its that sufficient Technicians) ly, opt FTS to in. FTS Tech- jury’s supports verdicts. We implemented allege nicians FTS a district REVERSE the court’s calculation company-wide time-shaving policy that re- of damages and REMAND the case' for quired systematically its to un- recalculation of consistent with derreport juryA their overtime hours. re- opinion. this class, in turned verdicts favor of the which I. BACKGROUND upheld calculating district court before damages. appeal, and awarding On we af- A. Facts firmed the district court’s certification of compa- FTS contracts various cable and case as a collective action its find- nies, Warner, such Time as Comcast and supported that sufficient evidence provide support, to cable installation and verdicts,

jury’s but the district reversed Alabama, Tennessee, primarily in Missis- damages. court’s calculation of Florida, sippi, and To offer Arkansas. services, petition employs FTS and UniTek filed a for a these FTS technicians at certiorari, offices, Supreme writ of and “profit Court local field called centers.” vacate, issued a a com- grant, company hierarchy and remand order FTS’s includes pany president, regional (GVR)—granting petition, vacating our CEO and di- technicians, profit managers, and executive rectors, managers each project showing time-shaving policy FTS’s FTS center, supervisors. group and corporate office. supervisors originated and with FTS’s report Technicians to time-shaving Technicians testified that the parent company, managers. FTS’s project wireless, policy company-wide, applying gener- was UniTek, is the business technicians, though in an ally to all cable, telecommunication, and ser- satellite meetings, At managers identical manner. vices, and provides human resources and groups instructed of technicians to un- functions FTS. payroll to hours, managers derreport their testi- substantially All share FTS Technicians them so. corporate fied ordered to do subject duties and are job similar Louden, manager, Anthony of- One former company- compensation plan same high-level testimony regarding fered exec- timekeeping system. FTS Techni- wide Louden identified meetings. utive overtime begin- profit to a center at the report cians fuel leading costs as two items ning workday, provides' where FTS of each that an felt it “should be FTS executive job assignments to individual technicians manage able to and cut order make two-hour blocks which specifies profit.” bigger Louden also stated jobs. Regardless of loca- complete certain circulated and FTS executives reviewed tion, great majority of do the “the techs timesheets, “go[ing] technicians’ into detail day day thing in and out which same overtime, and, you on which technician had hand, install cable.” Time is recorded know, go[ing] why guy over had too tech- project managers transmit FTS why much overtime and he didn’t have weekly di- timesheets UniTek’s nicians’ overtime.” Technicians testified that paid rector Technicians are payroll. being complained obligated often about pursuant piece-rate compensation human underreport, and FTS’s resources job meaning assigned each is worth plan, director testified that she received such regardless of the pay, set amount of presented complaints. No evidence was complete time it takes to amount of or technicians disci- managers job. record'shows 'that FTS Techni- The time. plined underreporting by multiplier paid applying cians are .5 regular to rate for overtime hours. their History B. Procedural presented Technicians FTS magistrate judge A condi- recommended implemented company-wide that FTS tional certification a FLSA collective time-shaving policy required techni- action, adopted. which the district court systematically cians underreport to also The district court authorized notice of Managers overtime hours. told or encour- to poten- the collective action be sent all underreport aged technicians to time opt-in notice plaintiffs. tial The defined To even falsified timesheets themselves. eligible any person em- class members as compliance hours in underreport overtime by ployed any as a FTS technician began policy, with FTS technicians either country past location across the times, their recorded start working before years present paid three to the who were take, lunch breaks did not recorded and did not receive by piece-rate overtime working or continued after their recorded all compensation for hours worked over end time. A per during period. week total of 293 presented ultimately docu- in to opted Technicians also technicians the col- FTS from mentary testimony evidence and lective action.1 promoted managerial plaintiff position. was a technician he was to a Named Monroe period. period, during the class After the class agreed nesses, parties originally on a dis- 17 of whom were class-member covery plan, and trial which the trial court technicians. FTS and UniTek identified all parties’ order. adopted Under 50 representative potential technicians as agreement, discovery would be limited “to witnesses, but called four witnesses— (50) representative sample fifty opt-in all FTS executives no technicians. Plaintiffs,” choosing Technicians The district court explained repre- choosing and FTS and UniTek 10. The sentative nature of the collective action to parties agreed also to approach the district the jury, both opening argu- before the court after “a discovery regarding trial ment during instructions, its noting plan representative based on proof’ that that FTS propose “will a certain number of Technicians Plaintiffs seek “to recover (50) pool fifty from the wages overtime that they claim [FTS and sample Plaintiffs that be called as owe UniTek] them and the other cable trial witnesses.” (R. joined technicians who have the case.” 10646—47; PagelD PagelD R. Following completion of discovery, 12253.) The jury specified instructions the district court denied FTS and Uni- plaintiffs brought the named then- decertify Tek’s motions to class and for claim on behalf of and collectively with summary finding judgment, that the class “approximately three hundred members were situated who have worked than a more dozen stage second of certification. In light different FTS field offices across parties’ agreement and the district court’s (R. 463, 12264.) country.” PagelD resulting litigation order—under which the court also set out how the case would be proceeded—the court held that it could not resolved, instructing that FLSA procedure “accept Defendants’ contention that “allows a small number of parties’ stipulated agreement limit dis- covery file lawsuit on fifty representative plaintiffs behalf did acquiescence not also manifest Defendants’ themselves and in the others collective remaining to a which process mem- group”; that the who technicians “testified produce bers the class would not have to during representa- this trial testified as prerequisite proceeding evidence as a tives of the other who did (R. 238, PagelD trial on their claims.” testify”; and that all em- “[n]ot affected 5419.) The district court also denied FTS ployees testify prove need to their claims” pretrial preclude and UniTek’s motion to “non-testifying plaintiffs per- because who proof at trial because “the substantially job formed similar are duties representatives class by identified Plain- thing.” to deemed have shown the same sufficiently represent the tiff[s] class” and (Id. 12264-65.) at The then district court deny use of representative proof “[t]o the charged jury all determine whether purpose this case would undermine the proven FTS Technicians “have then- relief, of class wide and would have the by considering claims” evi- whether “the (R. decertifying effect of the class.” presented by dence 6822.) PagelD plaintiffs who testified establishes unpaid worked overtime and hours Accordingly, the pro- collective action compen- are therefore entitled to overtime on a representative ceeded trial basis. (Id. 12265.) jury sation.” If the answers by FTS name Technicians identified affirmative, potential witnesses 24 wit- explained, and called the court “estimated-average” you approach did not calculate plaintiffs that “then those multiplier and of 1.5. by damages employing inference hear are also deemed from (Id. compensation.” be to overtime entitled 12265-66.) II. ANALYSIS challenge the FTS and UniTek certifica- liability in returned verdicts of jury The pur- of the case as a collective action tion class, that FTS Techni- finding favor of the 216(b), sufficiency § to 29 U.S.C. suant weekly in excess of 40 hours cians worked trial, the evidence presented being paid compensation overtime

without time, commuting jury instruction on and and and UniTek knew or should that FTS court’s of damages. the district calculation the law. willfully and have known violated legal After a review the framework for number jury average determined circuit, actions we turn collective in our hours week per of unrecorded worked arguments. of these each whom testifying each technician—all of called on representative and were Legal A. Framework similarly situ- behalf of themselves and all 1. Certification and Burden by 29 employees, as authorized U.S.C. ated Proof Under the FLSA 216(b) § and instructed the district parties indicated and court. As FLSA, employer generally an Under find- jury, jury’s court used the factual compensate employee “at a must rate testifying ings to calculate for all than one one-half times the not less nontestifying opt-in in the technicians regular employed” rate at which he is for The trial court ruled that collective action. exceeding forty per work hours week. 29 calculating uncompensated for 207(a)(1). formula Department § reg- U.S.C. Labor multiplier, ap- use a overtime should 1.5 however, clarify, piece- ulations that in a parently assumption based system only pay” rate “additional half-time normally used that multi- FTS and UniTek required for overtime hours. 29 C.F.R. plier. 778.111(a). § post-trial “Congress passed court2 sta- the FLSA with

The district held suggested tus that a sec- broad remedial intent” to address “unfair conference ond to decide the in commerce” competition could convened methodfs] damages. op- and UniTek that cause “labor conditions detrimental to issue of posed jury, arguing a second the maintenance of the minimum standard health, judgment living had prove damages necessary efficiency, failed to entered, general well-being for the defense of workers.” should be “either Keller LLC, Microsystems ... zero dam- v. Miri 202(a). 2015); § ages.” rejected propos- After the court 29 U.S.C. al, judg- of the are provisions FTS and Unitek filed motions for statute “remedial and law, trial, matter of and humanitarian in and “must purpose,” ment as a a new decertification, narrow, in interpreted applied all of denied. which were be grudging that FTS Technicians had met manner.” Herman v. Finding Fabri-Cen Am., Inc., 580, (6th on the court F.3d 585 damages, their burden ters 308 2002) Coal, order, using an Iron R. adopted proposed (quoting their Cir. Tenn. & pre- Phipps 2. The Honorable Bernice Bouie Donald The Honorable Jon McCalla John Fowlkes, presided post-trial all pretrial all trial issues before T. Jr. over sided over issues, including assuming position damages. Circuit. calculation of her on the Sixth

397 123, No. Co. v. Muscoda Local 321 U.S. certification standard akin to that for class 590, 597, 698, (1944), 64 88 L.Ed. 949 pursuant S.Ct. actions to Federal Rule of Civil superseded on grounds, 23, other statute Procedure the district court decertified 1947, Portal-to-Portal Act U.S.C. the collective action on the basis that indi- 251-262). §§ vidualized predominated. issues Id. at 584. appeal, On we determined that the dis- Congress’s

To effectuate remedi trict court engaged overly in an restrictive purpose, al authorizes the FLSA collective application of the “similarly FLSA’s situat- “by any employees actions one or more ed” standard. It “implicitly and improperly and on behalf of or themselves himself applied a Rule similarly 23-type analysis other employees situated.” 29 when it 216(b). reasoned § that the participate U.S.C. To FLSA not simi- larly actions, situated signal ques- collective “all must because individualized predominated,” tions affirmative which writing their consent to “is a more par stringent ticipate statutorily in the Comer standard than action.” v. Wal-Mart re- Stores, (6th quired.” Inc., 544, Id. at explained 584-85. We 454 F.3d Cir. “[wjhile 2006). Congress Only “similarly imported could have persons situated” stringent more may opt in actions. criteria class to such Id. Courts certifica- 23, tion under P. Fed. R. typically bifurcate certification of Civ. has not FLSA FLSA,” done so in and applying At the stage, collective action cases. notice Rule 23-type predominance conditional standard may given certification be “under- mines the along judicial purpose remedial of the notify authorization to collec- tive action device.” Id. 584-86. similarly situated of the Based on employees action. precedent, then, our concluded, “similarly the FLSA’s discovery Id. Once has the dis situated” demanding trict standard is less than court—with more information on Rule which 23’s standard. to base its decision and thus under a more exacting standard—looks more close O’Brien three applied the non-exhaus ly at whether the members of the class are tive many factors that courts have found similarly at 547. situated. Id. relevant to the FLSA’s situated (1)

In Donnelly Enterprises, analysis: O’Brien v. Ed employment the “factual and Inc., (2) we clarified the contours of the settings plaintiffs”; FLSA of the individual] There, standard for “the employ- plain certification. different defenses to which the ees alleged employer subject their tiffs violated individual ba sis”; (3) the FLSA requiring to work degree “the fairness and clock,” “off ways— procedural so several doing impact certifying the action requiring unreported hours before or as a Id. at (quoting after collective action.” by electronically Kane, work or 7B altering Wright, Miller Federal & Prac (6th (3d § timesheets. 575 572-73 tice and 1807 at F.3d Cir. Procedure 487 n.65 2005)); initially Morgan The district ed. Family court certified see also v. Stores, Inc., the O’Brien case as a collective action. Dollar Id. 1261-65 (11th 2008) stage certification, factors); at 573. At the second Cir. (applying Thies court determined sen v. Capital Corp., claims re- Gen. Elec. 2001) quired “an analy- (applying extensive individualized fac tors); Inc., sis to Frye Hosp., determine whether FLSA violation Mem’l Baptist had alleged occurred” and that “the 495 Fed.Appx. viola- tions broadly were not on a court applied, (concluding properly based that district ex Applying weighing common scheme.” at 583. ercised its the Id. discretion certification). employees,” to all “applicable mula granting and factors O’Brien piece-rate em- court there awarded of district “[sjhowing policy’ a ‘unified that Noting overtime recovery unpaid of some ployees held required,” not we violations under the FLSA. U.S. compensation single, from a “suffer who employees 685-86, 90 L.Ed. 66 S.Ct. “claims or whose FLSA-violating policy” (1946), on other superseded statute theories of defen by common unified [are] 1947. Act of We violations, if Portal-to-Portal grounds, statutory even dants’ determining that appeal, inevitably indi reversed are of these theories proofs awarded dam- improperly court distinct,” similarly situ district are and vidualized employ- that it was the 584-85; ages holding O’Brien, see also 575 F.3d at ated. Law, prove by preponderance “to ees’ burden Emp’t & 2 ABA of Labor Section 19-151, they did not receive the evidence that Act 19- of Labor Standards The Fair they entitled ... ed., wages to which were (Ellen ed. Kearns 2d C. than con- by evidence rather and to show supporting use of cases (compiling worked, it jecture the extent of overtime “many courts noting that three factors and merely to offer for them being insufficient have estab whether consider worked.” average of overtime an estimated employer policy, practice, a common lished FLSA,” Id. at of the allegedly violation plan concerns about the may “assuage which certiorari, Supreme Court On circum varied otherwise plaintiffs’ improper imposed had held that we stances”). practical that “has the proof standard of standard, found the we Applying many of the benefits” of impairing effect of similarly situated. We O’Brien us of the cor Id. It reminded the FLSA. court erred the district determined standard, rect unified, claims were plaintiffs’ because employee bringing cautionary note: an means “articulated two common they proving “burden of such a suit has the forcing allegedly cheated: which he was not performed he work for which im- the clock and to work off na compensated. The remedial properly O’Brien, 575 editing time-sheets.” properly great public and the ture of this statute However, at 585. due O’Brien’s ... militate it embodies policy which (the only via- procedural posture peculiar impossible making that burden an against allege did not remaining plaintiff ble 686-87, employee.” Id. hurdle for practices), experienced the unlawful she acknowledged have since S.Ct. 1187. We appro- recertification was remand for Moran v. Al Basit instruction. See sum, In ex- at 586. O’Brien priate. Id. LLC, for certifica- plained the FLSA standard how an explained also Supreme Court 23-type tion, it from a Rule distinguishing prove his satisfy can burden employee standard, adopted predominance and its amount: uncompensated work both employed by several three-factor test are inaccu employer’s records “where Id. at 585. our sister circuits. employee can inadequate and rate or ... an convincing substitutes em not offer procedure clarifies the Just as O’Brien if out his burden he has carried ployee of a col- requirements for certification work performed he has in fact action, proves that Supreme opinion Court’s lective compensated improperly he was Pottery for which Mt. Clemens Co.— in Anderson v. if sufficient evidence produces he case—explains originally a Sixth Circuit of that work amount and extent a for- show the Using at trial. proof burden 399 just job. a and infer- as matter of reasonable 136 S.Ct. at 1041-42. The employees Clemens, sought 66 certification as ence.” Mt. U.S. at a class action under Federal Rule of employee’s proof Civil Procedure S.Ct. 1187. The burden 23 and as relaxed, § collective action under 29 Supreme on be U.S.C. 216. damages can the Id. at 1042. The district court certified rarely the explained, employees Court because Tyson’s objection action over that records, the em- employer’s which keep work is the ployees’ claims were too dissimilar for res- Id.; O’Brien, duty Act. under the see olution on a classwide basis because the 602; 211(c); § also 29 F.3d at see U.S.C. employees took varying amounts of time to 516.2(a)(7). § employees C.F.R. Once the don doff varying gear. kinds Id. at satisfy their relaxed burden for establish- Tyson 1042-43. Because not keep did time work, ing the of uncompensated extent required FLSA, by records the employer burden then shifts to the “[t]he employees relied on representative evi- pre- to come of the forward dence in the form of employee testimony, performed cise work or with amount of recordings, expert study video and an that negative evidence to the reasonableness of average spent estimated the time donning the inference to be drawn from the em- doffing equipment in depart- different Clemens, ployee’s Mt U.S. evidence.” ments based video observations. at Id. 687-88, 1187. 66 S.Ct. According employees’ 1043. to the expert, in quoted applied We this standard donning doffing time varied among Home, Inc., Group Herman v. Palo Foster workers, ranging from about seconds to concluding employees had met ten minutes in one department, and from their burden on “credible because nine two to minutes in another. Id. at 1055 presented they evidence” had been (Thomas, J., dissenting). Subsequently, Ty- they had work for performed which son to the argued jury this same improperly compensated. 183 F.3d recovery improp- variance made classwide 1999). recognizing Also this shift 1044 (majority opinion). er. Id. at burden, held we that “Defendants did liable, signifi- found but awarded by not keep required the records cantly aggregate damages less than the FLSA, court shift properly so the district expert’s sup- estimated times would have ed the to Defendants show that burden Ty- Id. The ported. district court denied they did not violate Act.” Id. The end motions, including its post-trial son’s mo- result of if “em this standard an class, decertify Eighth tion to and the evidence, ployer fails to such produce affirmed. Circuit court then award to the Court, Tyson the Supreme Before chal- employee, though even result lenged the certification of the class and approximate.” at 472 Mt. Cle (quoting Id. actions, arguments raising collective com- mens, 328 U.S. parable those made FTS and Uni- The core standards set out in the cases using Tek here—that Supreme above are reinforced sample predominance,” “manufactures ab- There, in Tyson. Court’s recent decision employees prove solves of their burden Tyson Foods, working injury, personal employer and robs jobs over 400 departments across three litigate “to its defenses to indi- right pork processing plant, sued under Based on vidual claims.” Id. these claiming objections, Tyson FLSA did not receive ban on sought repre- donning response, overtime time pay spent evidence. Id. In sentative gear to their the em- doffing protective specific Supreme Court examined whether Ty- original our are confirmed in opinion certification under Rule 23 ployees’ class Tyson And, the employees’ son. did not appropriate given was because address in evidence, compiled expert’s key damages, analysis on our is also estimates, assumed that the average time unaffected. spent average the employees same various FTS and UniTek contend that two 1041, doffing. Id. at donning time and control pieces dicta in this case. requested the ban Finding 1046. First, the district challenge court’s sense,” af- little the Court “would make non-testifying instruction that technicians certification proper, firmed the class as would be to have shown “deemed the same study expert’s the was admis- holding that technicians, thing” as testifying argu- the and that representative sible usurped jury’s that the the instruction study’s assump- the on the jury’s reliance determining representativeness role of Mt. Clemens. under permissible tion was rely of the FTS and UniTek on evidence. (“In Id. id. at 1046-47; many acknowledgement the Court’s per- cases, sample only ‘the representative evidence is gener- suasiveness of admitted collect practicable present means to and ally jury, including matter for the li- establishing defendant’s relevant data’ question average [the “whether time Complex Manual Liti- ability.” (quoting probative expert] calculated is employees’ 2004))). 11.493,

gation § at 102 ed. actually as to the worked by time each Tyson does not compel a result different employee.” Id. at 1049. The Supreme in opinion from It original this case. Court, however, this made reference to supports because that decision it reaffirms illustrate role of the district court Clemens, Mt. burden-shifting frame- its (“The certification. See id. granting class work, permissibility “just and District Court could have denied class cer- plaintiffs’ from ev- inference[s]” reasonable ground only tification on if it conclud- employers idence in FLSA cases where do juror ed that no reasonable could have records. Id. Mt. required keep (quoting spent employees roughly believed that the Clemens, 1187). 328 U.S. S.Ct. equal donning doffing.”). time This Tyson, moreover, analyzed the issue district dictum concerned how courts “generalized proof’ through class-wide representativeness should assess the of an predominance requirement for certi- class for class expert’s average statistical certifi- id. fication Rule under which cation how a purposes, not district court stringent we have held “is a more standard could exercise its discretion to instruct a statutorily required” than is for collective jury form. or structure a verdict The court 216, O’Brien, § actions under 575 F.3d at properly below instructed Supreme Court’s ruling authoriz- procedure representative FLSA allows ing representative evidence under a lawsuit on tó file behalf of a of Rule 23 is more standards therefore group testimony collective and that the than to cover FLSA sufficient collective some be considered § under 216—actions that effectu- actions behalf of the whole class. See proof ate nature of the “remedial [the FLSA] supra pp. 395-96; pp. (citing 407-09 public policy great which embod- infra (alteration nine circuits precedent permit- from sister Tyson, ies.” at 1047 Clemens, ting representative testimony to (quoting Mt. Tyson) establish 328 U.S. at Thus, non-testifying employees certification S.Ct. cases). form proof per- collec- FLSA The verdict here standards and burdens the jury that we set out in mitted to determine whether FTS applied tive actions company-wide just time-shav- applied single, verdict.” Morgan, F.3d at Technicians, including ing policy below, to all FTS 1280. As will be shown FTS Techni employees. non-testifying pp. See presented cians more than sufficient evi infra Tyson, holding 409-11. related whose dence from technicians certification, does not re- require class along “good old-fashioned direct evi in- versal of a trial included a dence,” including managers six super concerning struction or form the of nature documentary visors and proof containing representative evidence FLSA collective payroll timesheets and records. See infra actions. Part The 17 testifying technicians, C.l. moreover, were

Second, represen drawn from the to the FTS UniTek turn sample of tative 50 technicians Supreme agreed Court’s statement that represen upon by parties. tative inade both “statistically evidence that FTS and UniTek quate all implausible assump or based included 50 technicians from this sam “just tions” could not used to and ple had, draw on their witness list and but chose exercise, reasonable” inferences about the number not to right the to call any of of uncompensated employee hours an them challenge the representativeness worked. Id. at 1048-49 Cle (quoting Mt of testifying the technicians. FTS and Uni- mens, 1187, 328 U.S. at S.Ct. Tyson rejected, Tek seek what “broad and the quotation). According latter to FTS categorical rules governing rep use of UniTek, the failure of Techni FTS resentative and statistical class present expert cians to statistical Id. at Tyson actions.” 1049. did not create study was a failure that should ended have limiting representative a rule evidence be litigation prohibited or Techni FTS yond the well-established standards of ad testimony cians’ on the 17 tech reliance of missibility. Tyson impose nicians. does not such summary, In Tyson approved the use of requirement. Court’s statement about representative evidence in a FLSA case con adequacy statistical was made in the similar this one and reaffirm- expressly admissibility

text of the of principles ed the set out in Mt. Clemens. It (citing evidence. at 1049 See id. Daubert reinforced the remedial nature and under- Pharm., Inc., Merrell Dow 509 U.S. lying public policy of FLSA and explic- (1993)). S.Ct. L.Ed.2d 469 itly limiting declined to set broad rules challenge do not FTS and UniTek types permissible of evidence FLSA admissibility testimony the 17 Tyson actions. conclude that collective We technicians, sufficiency of but rather the change analysis our in this does not case. FTS Technicians’ evidence. And, significantly, did not discuss B. as a Collective Ac- Certification expert they are statistical studies because tion only plaintiff may way prove appeal FTS and UniTek de claim, FLSA because but those decertify nial of their motion to the collec employee offered such study—along with tive We review a district court’s action. testimony For our recordings. and video certification of a collective action under an sufficiency purposes assessing when evidence, “abuse discretion” standard. See “the issue we must O’Brien, 575 F.3d at “A court squarely le abuses decide is whether there was commits when it a clear error gally evidence;—representative, sufficient its discretion direct, circumstantial, in-person, deposi judgment, applying such as the incor tion, standard, produce legal misapplying or a reliable rect the cor- otherwise—to location, clearly techs standard, great majority “the do relying upon legal

rect in and thing day day the same out which is fact.” Auletta v. Orti- findings of erroneous also (In install cable.” FTS Technicians are Litig.), Corp. re Derivative no Ferro system subject timekeeping the same .511 hand) (recording compensa- of time certifi- made its final The district court rate). plan (piece tion post-trial. With cation determination Key here, ample record contains evi- trial record—includ- of the entire benefit company-wide policy requir- of a dence testimony from techni- ing representative underreport hours that technicians regions in which covering cians the several Managers originated FTS executives. court that FTS operates—the found told technicians received instruc- and a Technicians were situated corporate, tions to shave time from appropriate. FTS and collective action was underreporting “company policy,” is and the case challenge certification of UniTek they by corporate” that “chewed out were action, that differ- arguing a collective as allowing much reported. for too time to be (differences among FTS Technicians ences Managers testified FTS executives di- location, for sub- reasons supervisors, them order to un- rected to technicians timesheets, types false and mitting and derreport FTS executives time. reinforced time) require an uncompensated amount of policy during meetings manag- analysis every plaintiff as to individualized profit ers and technicians at individual cen- particular violation determine whether to that they ters. FTS Technicians testified for place the FLSA took each. being required complained of to underre- review, Turning to we not examine corporate port, often in fi*ont or to using 23-type the certification issue a Rule representatives, nothing. who did analysis; apply “similarly we situ- must pressures suggests Evidence of market three-fac- governed ated” standard had to that FTS executives a motive insti- governing test set out in O’Brien. Two tor time-shaving policy. tute a company-wide ease, serve principles from our law According manager’s testimony, to one not “identi- guides: do have to be “[ejvery profit budget,” center has ... a situated, cally situated” to be and put budget “you and to meet that couldn’t the FLSA a remedial statute should your managers all of overtime.” Both and broadly 2 ABA be construed. Section impression technicians under were Law, 19-150, supra, 19- Emp’t Labor & profitability depended on FTS’s underre- cases). (compiling porting. Employment Settings

1. Factual and The underreporting policy applied to factor, regardless profit factual cen- first and FTS Technicians supervisor, employed employment settings of the individual FTS ter or as technicians Technicians, considers, multiple profit “to the extent centers under multi- and case, job managers plaintiffs’ ple reported are relevant to the consistent time- duties, locations, shaving practices su across geographic employer the centers and compensation.” managers. Namely, Id. at 19- FTS pervision, and executives told managers FTS Technicians’ duties and loca that technicians’ time before and 155. On tions, during the record reveals that all after work or lunch should be un- derreported. manager position, Technicians work the same One told his techni- description, will job per have the cians “an hour lunch break same not,” [they] it or job regardless duties: of deducted whether take form same Coal, full reported Co., technicians who hours See Tenn. while cases. Iron & R.R. that” “change 698; Keller, told to “[t]his 321 U.S. at .., here, you Herman, do 806; is not how we it over are F.3d at 308 F.3d at 585. your to just supposed record hours Many FLSA cases do focus a single on week, lunch, your sign action, take out for it and donning such as the doffing comply turn it in.” If technicians failed cases that the dissent’s reasoning would managers directly policy, with the would suggest is the situation where repre- by employ- alter time sheets submitted proof sentative would work. But neither manager changed a seven an ees—one statutory language nor purposes change another eight and used whiteout require FLSA collective a violating actions Regarding reporting times. lunch hours policy implemented to be aby singular taken, manager one said “that’s method. The dissent cites no Sixth Circuit be, put way got you it’s there case that would compel employees bring put (or I’ll it on there.” Even technicians separate worse, who a sep- collective action manag- actions) never received direct orders from arate unreported individual to underreport ers time knew that FTS required by work employer before underreporting in, order to con- required clocking required and another work receiving assignments out, tinue work clocking after and another for work reprimand or during lunch, avoid termination. required yet another for employer’s employees’ alteration of its Technicians identified the FTS interpretation timesheets. Such a narrow methods—the same methods found purpose snubs the of FLSA collective ac- en O’Brien—by which FTS and UniTek tions. (1) time-shaving policy: forced their “re quiring plaintiffs to work ‘off clock’” The dissent that FTS concludes Techni- during or after hours or before scheduled do cians’ claims “not do the trick” because (2) “alter[ing] lunch breaks the times “company-wide policy a ‘time-shaving’ previously been that had entered.” company-wide a of lawyer policy talk for O’Brien, at 572-73. 575 F.3d As (Dis. 419.) violating the FLSA.” at But O’Brien, similarly will such depend Technicians’ claims do on FTS not by situated where their claims are “unified talk”; “lawyer they are based on abundant statutory common theories of defendants’ evidence in the record of employer man- violations, proofs if even of these theo work employer dated off clock. That an inevitably ries are individualized and dis implement more than one to uses method tinct.” Id. at company-wide policy work “off-the-cloek” being that FTS not from prevent dissent asserts Techni- does allege similarly purposes violations of cians “distinct” situated for FLSA company-wide ‘poli- protection. concept FLSA and “define the This is not new cy’ lofty generality at our court In such a level that other courts. accordance (Dis. O’Brien, encompasses policies.” approved damages at with we multiple have 418.) similarly alleging The .definition situated awards to FLSA that em- classes not of granu- ployers multiple does descend to such level used means to undercom- See, larity. Supreme pensate e.g., Court has warned for overtime. U.S. Dep’t Enters., 775, “narrow, Inc., against grudging” such a inter- Labor F.3d v. Cole 62 (6th 1995) pretation (approving damages FLSA has instructed 778 Cir. employers required employ- courts remember its “remedial and hu- award where purpose, uncompensated manitarian” as have our own ees work time both be- argue they and UniTek their scheduled shifts and to basis. FTS fore after separate must shift on be allowed raise defenses report only the scheduled hours timesheets). by examining plaintiff each individual Other circuits and dis- they the number of unrecorded hours as well. See trict courts have done so worked, Seto, 586, they but were denied McLaughlin v. Ho Fat F.2d 1988) right by the allowance of (affirming damages estimated-average ap- and an testimony employees gave varied testi- award where circuits, own, proach. including Several our mony employer means used to un- on the overtime); hold that individualized defenses alone do v. Simmons derpay Donovan decertification where suffi- warrant Corp., Petroleum 1983) job cient common issues or traits other- (affirming damages award where O’Brien, litigation. permit wise collective employer compensate failed to over- work, (holding employ- 575 F.3d at 584-85 and after differ- time both before locations); ees if Boys, they are situated have Pep ent Wilks No. 3:02- (M.D. ... unified common *5 Tenn. “claims theories 2006 WL violations, statutory defendants’ even if the Sept. (denying motion to decerti- proofs inevitably these are alleged theories indi- fy employer deprived class that distinct”); compensation by Morgan, vidualized employees of overtime 1263; Thiessen, F.3d at see to work the clock and requiring them off records). shaving from 1104-08. payroll hours above, O’Brien, As noted the record includes FTS

Like the docu- Technicians’ credible testimonial and Technicians’ claims are unified common mentary they performed implemented that' FTS executives theories: improperly work which com- time-shaving single, company-wide policy pensated. In the of accurate em- absence through force di all technicians—either records, ployer Supreme both and regardless Court pressure rect orders or and of precedent Sixth dictate Circuit supervisor—to underreport location or employer burden then shifts to the hours worked on their time- overtime O’Brien, “negative the of 584-85; reasonableness the infer- F.3d at sheets. See 575 ence employee’s to be drawn from the Accep see also Brennan Motors Gen. and, so, if it fails to evidence” do 829 Corp., tance 482 F.2d resulting damages per- need award not be (affirming uncompensated finding Clemens, fectly precise. Mt. exact 328 overtime where understated (“The 687-88, 1187 em- U.S. at of pressure brought overtime because ployer be complain cannot heard supervisors, putting up bear immediate damages lack exactness preci- and on per management constructive notice violations). possi- sion of measurement that would be Based potential FLSA on the kept ble had he in accordance with Technicians’ records record to FTS factual and FLSA].”); therefore, requirements of see [the employment settings, the dis Herman, 183 at 473. trict court did not abuse its discretion in finding FTS Technicians situated. framework, use Under this with the testimony an esti- Defenses

2. Individualized approach, mated-average defenses success- fully against representative now to the testi- We turn second asserted fying properly to which the technicians were distributed factor—the different defenses claims techni- plaintiffs may subject nontestifying be on an individual across the example, penscheid dans. For FTS and ar- USA, LLC, UniTek v. DirectSat gue did testifying 2013) (“[W]here technicians not F.3d of the work all overtime claimed and is class treatment or nothing, the district underreported some of their overtime for court carefully must explore the possible other than company-wide policy reasons ways of overcoming problems in calculat requiring it. every FTS and UniTek had damages.”). individual Because all FTS opportunity to submit witnesses evi- common, allege Technicians FLSA-vio- supporting dence jury’s this claim. The lating policy, judicial system “[t]he benefits partial acceptance defenses, of these as by efficient resolution proceeding in one finding evidenced its testifying common issues of law and fact.” Hoff technicians worked fewer than they hours Roche, Inc., mann-La 493 U.S. at claimed, in a average resulted lower for S.Ct. record, 482. In view of the entire Thus, nontestifying technicians. FTS Tech- neither this factor nor sug the other two nicians’ evidence allowed gest that the district court abused its dis appropriate consideration of the individual finding cretion in FTS Technicians similar court, defenses raised here. district ly and maintaining situated certification. moreover, offered convene a second it, submit issue but 4. Seventh Circuit Decision Thiessen, FTS and UniTek declined. See Espenscheid (concluding 1104-08 dis- Lastly, argue FTS and UniTek that Es- trict court abused its discretion in decerti- penscheid—a Seventh Circuit case affirm- fying the class “highly because defendants’ ing the decertification aof collective ac- individualized” defenses could dealt unpaid tion seeking overtime—compels trial). stage the damages Under here. decertification 705 F.3d at Es- record, our precedent and the trial we however, penscheid, is based on Seventh say that district cannot court commit- authority Circuit and specifically acknowl- judgment refusing ted a clear error of edges that it at odds with Sixth Circuit decertify the collective action O’Brien, precedent. Id. at (citing right basis of FTS and UniTek’s claimed F.3d at Though dif- recognizing the to examine and separately raise defenses ferences between Rule 23 class actions each against opt-in plaintiffs. of the collective FLSA actions—and admit- Impact 3. Fairness and Procedural ting that procedures Rule 23 are absent from statutory provisions the the of factor, degree The third the of FLSA—the Seventh Circuit determined and procedural impact fairness the of cer good that “there isn’t a reason to have case, tifying supports the also certification. different standards for the of certification policy This case satisfies the behind FLSA types the two different of action.” Id. This Congress’s actions collective and remedial our precedent. Explaining conflicts with small, by consolidating many intent related Congress that could but im- have did not for which proceeding claims port predominance require- the Rule 23 individually costly prac too would be to doing ment into the FLSA and that so Sper tical. Roche v. See Inc. Hoffmann-La 170, would undermine the ling, purpose U.S. 110 remedial S.Ct. 107 (1989) actions, (noting FLSA collective we have L.Ed.2d that FLSA col refused give plaintiffs equate lective actions the “advan the FLSA certification standard tage stringent of lower individual costs to vindicate for actions to the more collective resources”); rights by the pooling Es un- certification standard for class actions O’Brien, Conversely, us to FTS and UniTek ask Rule der They completion. 585-86. overturn a case tried to that the seek a determination district court Cir- The between the Seventh difference in declining abused its discretion to decer- actions and cuit’s standard for collective after tify the 293-member collective action for controlling our own the distinction is pos- agreed rep- us.3 facts and parties preliminarily the issues before The both however, also distin- Espenscheid, ture of discovery plan, completed trial resentative There, the district guish it this case. from basis, jointly rep- and selected the be- the collective action court decertified here, more- jury resentative members. trial, settled parties fore after which the over, testimony from heard appealed the decertifica- their claims but trial, the 5.7% of class members at FTS discretion, abuse the Reviewing tion. for opportunity and UniTek had abundant Seventh Circuit affirmed the district court. contradictory provide testimony, and noted opinion The circuit testimony Technicians also submitted from recognized possible need for indi- had managers supervisors along with doc- a class of findings vidualized umentary proof. Upon completion of the 2,341 members—nearly larger times presentations by parties, fol- case “truculently” re- group than the here—but lowing jury regarding collec- instructions specific plan litigation accept fused actions, tive returned verdicts propose an and failed to alternative In light favor of FTS Technicians. of these other kinds of evidence that specify the differences, factual, legal, procedural they supplement intended to use Espenscheid simply controlling. testimony. Espenscheid, 775-76; Thompson 705 F.3d at see analy- To conclude our situated Assocs., Inc., F.Supp.2d Bruister & sis, supported by certification here is our (M.D. (holding Tenn. employment factual and set- standard. The Espenscheid “conceivably cannot be read tings of FTS Technicians and individual utilizing indictment of a col- overall degree procedural of fairness and the lia- a vehicle to lective action as establish case impact certifying uphold- favor bility piece-rate cases ... because the ing alleged FTS and certification. UniTek’s presented was with little Seventh Circuit not require individual defenses do decerti- did, given choice but to hold as it the lack were, be, they fication can because in ex- cooperation by plaintiffs’ counsel in a adequately presented collective forum. prove up plaining how intended to us, court On record before district case”). opinion additionally refer- try was within its wide discretion to support- no similar ences evidence as a action formulated claims collective And time-shaving policy here. plan so. appropriately a trial did proposed, represen- not agreed-upon, but on the Based record of common sample Espenscheid tative constituted theory violation—namely, of an FLSA-vio- action, only 1.8% of the and the collective by lating time-shaving policy implemented selecting method of the was unex- sample the court’s plained. Espenscheid, corporate—we F.3d at 774. affirm district cases, suggests Espen- 3. The we both in each was what dissent must follow but issue case FTS, scheid it “involved the same because employer—here the direct there Direct- defen- 417-18.) UniTek, (Dis. dant this case.” reporting USA—required regarding of Sat the parent provided re- company the human overtime. functions, payroll sources and was involved in just case certification of this as a collective and reasonable to inference as the action. (i.e., amount extent of and that work dam- ages). Clemens, Mt. 328 U.S. at Sufficiency of the Evidence

C. only S.Ct. “[T]he 1187. issue we must FTS At the close of Technicians’ case squarely decide is whether there was le- verdicts, and the and after Uni- gally evidence—representative, sufficient judgment Tek moved for as a matter of direct, circumstantial, in-person, by deposi- law, of challenging sufficiency the the evi- tion, or produce otherwise—to a reliable dence, the of particularly repre- allowance just Morgan, verdict.” 551 F.3d at testimony at trial to prove sentative liabili- 1280. Plaintiffs have the initial burden to ty the use an estimated-average of make damages the showing at approach damages. to calculate The dis- trial; made, once burden shifts de- motion, trict court denied the which FTS prove precise fendants to of amount appeal. and UniTek now work performed or otherwise rebut reasonably inferred amount. Id.

“Our of sufficiency review the 687-88, 66 S.Ct. If 1187. defendants fail of the evidence of a trial review burden, to carry this the court judge’s rulings may on motions for directed award inferred, [judgment reasonably or as a of verdict matter though perhaps law].” (6th Young Langley, 793 F.2d approximate, damages. Id. at 1986). post-trial Cir. de novo a We review 1187.

decision on a motion for judgment as by applying

matter law stan same Liability 1. dard used the district court. Waldo v. Co., FTS and challenge UniTek Energy Consumers 726 F.3d district court’s “Judgment representative as matter of allowance if may granted testimony prove liability law be ... there is no for nontestify- genuine jury, issue of material fact for the ing technicians. recognized We have minds reasonable could come but “representative testimony from a subset moving par one conclusion favor be used facilitate the [can] Cincinnati, ty.” v. City Barnes violations, presentation proof of FLSA of 2005). 729, 736 The court must proof normally when such would indi decide whether there was sufficient evi O’Brien, vidualized.” 575 F.3d at 585. Pre verdict, support jury’s dence to without O’Brien, ceding we affirmed an award of evidence, weighing the questioning the back for wages unpaid off-the-clock hours witnesses, credibility of the substituting based testimony in Cole judgment jury. the court’s that of the Inc., There, Enterprises, 62 F.3d at 781. Waldo, 726 F.3d at We must view the objected to an defendant award most light favorable to the wages nontestifying back employees, against made, whom the motion is party which based on was testi giving party the benefit of all reason trial, statements, mony at interview inferences. able Id. Id. employment records. We endorsed sufficiency testimony, of representative Clemens,

Pursuant to Mt. the evi holding testimony fairly rep “[t]he dence as whole must be sufficient to find resentative be the basis performed that FTS Technicians work for wages nontestifying back improperly compensated which award of (i.e., liability) support employees.” Id. and sufficient to 1,424 plain on of plaintiffs testified behalf cases, representa- use of the

In FLSA tiffs, number. Id. lia- less than 1% of the total class-wide testimony to establish tive 1980s, em In the found that the long accepted. The Eleventh Circuit bility has been rep- use of approved validly complain the about the ployer Tenth Circuit could not the compa- where, here, testimony a situation testifying plaintiffs resentative as ratio of There, employer did “good rable to case. the trial record contained other old- working employees pay not overtime evidence,” id. at fashioned direct before or after cash-register stations plaintiffs’ intro employer opposed in six service sta- hours scheduled shift testimony while duction of additional Petroleum states. Simmons tions two own, its id. at choosing present not to Though only twelve F.2d at 84. Corp., 725 argument employer’s As for the 1277-78. testified, held the Tenth Circuit employees were so individualized its defenses testimony “was suffi- representative could not fair testifying plaintiffs that the violations,” pattern cient to establish cir testifying, those not ly represent repre- in favor of that the rule explaining the same reasons cuit court held that “[f]or is not limited “to situa- testimony sentative determining did not err in that the court leave a central employees tions where similarly Plaintiffs were situated that the beginning of a together at location action, enough to maintain a collective day, together during the day, work work determining Plain did not err in that the to the central location report back enough situated to tes tiffs were day.” at 86 <&n.3. More of the Id. the end another.” Id. tify representatives as one continued this recently, the Tenth Circuit is true here. at 1280. same in another FLSA case reasoning line of overwhelmingly sister circuits rec Our Foods, jury ver- Tyson upholding a against using representa ognize propriety that, in explaining dict for pattern testimony tive to establish liability as to each class prove order to similarly situated violations that include member, did not need to indi- “Plaintiffs See, testify. e.g., employees who did undercompensation proof vidualize the Garcia, (quoting court ordered certifica- 770 F.3d once the district Foods, Inc., Henry v. Lehman Com Ninth Circuit’s tion.” Garcia Inc., “[T]he Cir. 471 F.3d Paper, mercial reasonably rely representa- 2006), could proposition for the that “[t]he Cir. lia- to determine class-wide tive evidence impo would be class action mechanism keep failed to bility” employer when the proof and the representative tent” without Id. required records. ability to draw class-wide conclusions it); England based on Reich v. S. New case, comparable FLSA In another (2d 121 F.3d Corp., Telecomms. that, anything, held “[i]f Eleventh Circuit 1997) (“[I]t well-established that line of cases affirms the the Mt. Clemens testimony Secretary may present the employees rule that not all have general sample employees Mor overtime violations.” testify prove facie proof prima of his of the case part Although Mt. F.3d at 1279. Cle gan, 551 FLSA.”); Gateway Reich v. under shifting framework did not mens’s burden (3d Press, Inc., 685, 701 13 F.3d employer kept “thor apply because (“Courts commonly allow records,” representative testi ough payroll respect prove violations a collective basis the mony could rebut on employees.”); Tony Brock v. & Su to all employer’s allegedly individualized defens Found., 1018, 1019-20 so, Alamo liability. at 1276. To do seven san es to Id.

409 1988) (“[T]o compensate only plained determining Cir. above when that FTS or associates who chose where cho those Technicians were situated. We testify inadequate light to is of the sen that testifying found technicians geo- finding employees that were improp other graphically spread among various FTS Seto, erly compensated.”); Ho Fat 850 F.2d profit subject centers and were to the that, on representa at based (holding 589 job duties, timekeeping system, same twenty-three testimony, tive non- “[t]he compensation plan as nontestifying techni- a testifying employees prima established Morgan cians. As highlights, the collective- case had unreport facie that worked presumes action framework that similarly Diner, hours”); ed Donovan v. Bel-Loc employees situated are representative of 1985) Inc., 780 F.2d Cir. each other have' ability proceed to (holding requirement testimony that collectively. to Morgan, trial See practice establishing pattern a or must at 1280. nontestifying employees refer to all “would The dissent also challenges repre- of sort purposes repre thwart of of sentative nature the technicians’ testi- testimony clearly contemplated sentational mony, arguing a requirement blanket Clemens”); by Burger v. Mt. Donovan of direct al- plaintiff correlation because (1st F.2d King Corp., 672 224-25 company “the leging my altered time- 1982) (limiting testimony to six testify sheets” cannot on behalf of one from six restaurant locations owned alleging that “I underreported my time “in of the light defendant basic similarities my supervisor because directed me to.” restaurants”); between the individual Gen. (Dis. 420.) Though the time-shaving pol- Acceptance Corp., Motors 482 F.2d at 829 icy have as to been enforced individu- that, (holding testimony on based from methods, al several do technicians we representative and a re employees sixteen “representativeness” specifi- define so six found port employees “employ cally—-just do not such job consistently as we take a nar- type ees in this of failed worked,” “similarly all row view of report the overtime hours situated.” See O’Brien, might 585; “the trial court well have concluded see F.3d also Cole Enters., prima Inc., plaintiff had established facie 62 F.3d at For the testi- thirty-seven employees case all had fying representative technicians to be of hours”). In of unreported whole, worked face enough the class as a it is precedents, many these consistent with technicians as testified to each means case, fact patterns, similar FTS and common, enforcement of the FLSA-violat- point no categorically UniTek case dis ing policy. Corp., See Petroleum Simmons approving representative testimony testimony (deeming 725 F.2d at 86 from prove employer to those in the employee category least one in each testify. Tyson, collective action who do not pattern plaintiffs sufficient establish representative which held evidence to support an violations and award of dam- permissible in a FLSA certified case under all); ages to also Sec’y see Labor the continued validity Rule confirms DeSisto, (1st precedents. these at 1046-47. S.Ct. (“Where job fall into several that, that, categories, it seems to us at a mini-

FTS and UniTek next assert even mum, testimony representative of a testimony gen- if is allowed from, employee person with first-hand erally, testifying technicians here were not of, nontestifying knowledge categories each of the technicians. award.”). otherwise, pay The record ex- a back suggests support we essential jury’s choice was choice. But testimony ing” that Here, jury heard com- applied single, or not FTS whether underreport technicians to managers told all FTS time-shaving policy to pany-wide during and after work hours before each means encompassed Technicians that, in the absence of direct lunch and jury that it to enforce it. The found used orders, pressure exerted otherwise FTS recogniz- precedent accords with did. This reprimand, threat of under underreport similarly situated em- preventing assignments, or termination. of work loss collectively based ployees proceeding from the time- just directly altered managers Or evidence would render representative on conclusion The dissent’s sheets. collective-action framework. impotent the “remotely representative” not proof was Garcia, See, e.g., 770 F.3d at 1307. (Dis. acknowledges how neither testimony presented Espenscheid was cite Next FTS and UniTek representative representative from the record As to testi it follow a second time. here nor does emphasized that ample mony, Espenscheid evidence of was evidence. There it could not evidence before representative work off-the-clock managers implementing entirely because it consisted be sufficient and enforced requirements established testimony regarding experience “the ample policy and through corporate one small, sample of unrepresentative [work group plain- collective that the (1.8% 2,341 members), which of the ers]” policy the same enforced experienced tiffs “support an inference about cannot means. All FTS Technicians through three time of thousands of workers.” work testi- represented those properly not the facts before F.3d at 775. These are fying. repre here are Testifying us. technicians adopted by the procedure The collective sentative, testifying ratio of techni and the court, moreover, on was based district nontestifying technicians—5.7%— cians to was agreement, which FTS and UniTek’s range commonly accepted is well above order, limit by court dis- memorialized evidence, especially by courts as sufficient sample fifty covery “to documentary and testimonial where other (50) approach opt-in Plaintiffs” and See, presented. e.g., Morgan, evidence is “a discovery regarding after district court 1,424 (affirming F.3d at 1277 award to proof’ plan on trial based seven, testimony from employees based on number of propose that “will a certain evidence); .49%, S. or in addition to other (50) fifty repre- pool from the Plaintiffs Eng., (affirming 121 F.3d at 67 award New sample Plaintiffs sentative 1,500 nearly employees based on testi discovery After called as trial witnesses.” 2.5%); King mony Burger from or closed, object to the and UniTek did FTS Corp., (affirming 672 F.2d at 225 award at trial. But as representative proof use employees based on wages to 246 back the district court’s de- explained, have we six, 2.4%); also De testimony from see grounds for nial of that motion is not Sisto, (holding “there is no 929 F.2d at 793 stage. reversal at this num determining ratio or formula for remaining arguments required” and UniTek’s witnesses but employee FTS ber of employee reiterations of the is not liability simply testimony single are of a moreover, UniTek, are not simi- had enough). claims that FTS Technicians FTS and testifying tech- to call other technicians opportunity and that the larly situated Morgan, not to. See representative. are not FTS but chose nicians (“Family validly Dollar cannot com complain first UniTek plain testifying the number of plain or noth- about gave an “all verdict form Dollar Family jury’s tiffs when ... itself had the sufficient to support the verdict that great Technicians, all opportunity present deal more both testifying and testimony managers, nontestifying, from Plaintiff store performed work for which managers, or its compensated. [but] own district chose were not to.”). Damages light representa In of use of proper object FTS and UniTek to the use liability, tive testimony prove we note of an estimated-average approach to calcu presented evidence sufficiency of the late damages nontestifying technicians. testimony here. offered FTS Technicians They argue that an estimated-average ap from 17 representative technicians and six proach “just does not allow and reason managers as well supervisors, and as docu able Mt. inference”—the Clemens stan mentary including timesheets and dard—on the number of hours worked records, payroll imple that FTS prove nontestifying technicians because results mented company-wide time-shaving calculation, in an inaccurate giving some employees scheme that required sys than they Technicians more are owed tematically underreport their hours. See and some less. (“The jury’s id. at 1277 verdict is well- supported by ‘representative not simply We addressed version of the testimony,’ by a good but rather volume of estimated-average approach Cole Enter evidence.”); old-fashioned Mo direct Gen. Inc., prises, concluding that “[t]he informa Acceptance tors 482 F.2d at 829 Corp., tion [pertaining testifying witnesses] (holding that court could trial conclude was also used to make estimates and cal nontestifying violations as to employees culations for situated employees “employees based on evidence that this who testify. testimony did not fairly of job consistently type report failed to all employees be the basis worked”). the overtime hours Witnesses for an wages nontestify- award of back time-shaving policy attributed the to cor ing employees.” (emphasis 781 porate, managers and FTS executives told added). Other and district circuits courts underreport and technicians to overtime. have explicitly approved an estimated complained, Technicians but FTS took no average. v. See Donovan New Floridian Enters., Inc., remedial actions. Cole 62 See Hotel, 468, 472-73, Inc., 676 F.2d 472 n.7 (“[I]t F.3d at the responsibility 1982) (affirming district court’s management to that work is not per see normally determination that “waitresses formed if it want it per does not to be eight day” worked an one-half hour formed.”). In to this response evidence and testimony of compliance based on “the despite agreeing participating to and in officer and based on the computations pay the selection of 50 techni records”); roll v. Hamm’s Drive Donovan cians and all 50 on its including witness 1981) Inn, list, only FTS and UniTek called four cor practice” (affirming “accepted and not porate no technicians. executives and “clearly finding court’s erroneous” district that, testimony of employ Our standard of review dictates that we “based on the ees, light view the most ... certain aver groups evidence in the favor- give aged per able to them certain of hours week” FTS Technicians numbers pay benefit of all inferences. and award of “back based on reasonable Based those governing admittedly on the trial calculations” prece- approximate record and be dent, penalize we cause reversing conclude that evidence here is would the em- 686, 689, keep Act.” Id. employer’s for the failure Standards

ployees records); v. 1187. adequate Baden-Winterwood Inc., F.Supp.2d Time Fitness

Life estimated-average of an Disapproving (S.D. 2010) (averaging Ohio 997-1001 complete to lack approach simply due by testifying plain- per hours week worked accuracy ignore would central tenant nontestifying plain- it to applying tiffs inaccuracy damages of Mt. Clemens—an Enters., tiffs); Treetop Cowan recovery should bar violations (M.D. 930, 938-39 Tenn. F.Supp.2d for an penalize employees the FLSA or (“From testimony of the Plaintiffs’ keep rec- employer’s adequate failure to records, employee the Defendants’ (“The ords. See id. at 66 S.Ct. 1187 finds that Plaintiffs worked Court ... damage is therefore certain. The uncer- average per ap- hours 89.04 week tainty lies in the amount of Clemens, finding applied Mt. plying statutory arising by from the violation the the entire Plaintiff class to determine case employer. In such a ‘it would be owed for backpay the amount of overtime of of perversion principles fundamental by stipulated the number of weeks of work injured justice deny all relief to the parties.”). the thereby wrongdoer relieve person, the any amend acts.’” making from for his of acknowledges Mt. Clemens the use (quoting Story Parchment Co. v. Paterson average “an of overtime estimated Co., 555, 563, Parchment 282 U.S. 51 S.Ct. damages nontesti- calculate worked” 248, (1931))); also 75 L.Ed. 544 see 686, 66 S.Ct. fying employees. 328 U.S. at Inn, (up- Hamm’s Drive 661 F.2d at 318 There, suit eight employees brought 1187. holding estimated-average approach an A others. approximately on behalf “[ejvidence noting calcu- used to special productive master concluded that wages perfectly late owed need not be until the regularly work did not commence accurate, employee not since the should 684, starting time. at established Id. is due to a penalized inaccuracy when the special Declining adopt 1187. the S.Ct. keep adequate defendant’s failure to rec- recommendation, master’s the district ords”). Mt. princi- effectuates its Clemens ready employees found that the court were through framework ples burden-shifting starting for work 5 to 7 minutes before employees punished in which are but presumed they im- time started employers opportunity to make have 685, mediately. To Id. at S.Ct. 1187. precise damages by more exact and rebut- damages, the district court fash- calculate employees. ting presented by a formula to an estimated ioned derive Clemens, 687-88, 66 See Mt. 328 U.S. at average employ- all overtime worked 1187; Herman, S.Ct. see also ees, Id. On testifying nontestifying. had opportunity 473. FTS and UniTek Circuit, appeal we direct to the Sixth present at trial to additional evidence to average deemed estimated insufficient. failed rebut FTS Technicians’ evidence but 686, Though the Su- Id. 66 S.Ct. to do so. ultimately with the preme agreed Court master, special disapproval burden-shifting it reversed Mt. frame- our Clemens’s work, average, explaining conjunction of the estimated with the estimated- upon average approach, as envi- “imposed we had functioned here proof, improper working standard of a standard sioned. Seventeen technicians impairing has various locations testified and were cross- practical effect Labor as the number of unrecorded many of the benefits the Fair examined worked, 521, hours allowing jury to F.3d A district reasonably average weekly infer un- court does not abuse its discretion in craft- paid hours worked each. Testifying jury instructions unless the instruction technicians were accurately situated and “fails to reflect the law” “if technicians, nontestifying instructions, whole, viewed as a specified by the district confusing, court’s instruc- misleading, or prejudicial.” Id. jury, tions to the and thus average generally We must assume that jury weekly averages applied these to nontesti- followed the district court’s instructions. fying jury technicians. The found Olano, fewer See United States v. 507 U.S. testifying unrecorded hours than techni- 123 L.Ed.2d 508 claimed; (1993); cians FTS and par- UniTek thus see Monus, also United States v. tially refuted the sought by inference 390-91 (“[E]ven Technicians and their defenses were dis- if there had been insufficient evi- tributed to make the more exact dence to support a ignorance deliberate precise, instruction, as the Mt. Clemens frame- we must assume that jury work encourages. jury followed the charge and did not con- grounds vict on the igno- deliberate Viewing the evidence in the light most rance.”). Here, the verdict form does not Technicians, favorable to FTS we cannot specify whether the included commut- conclude that reasonable minds would ing average time the numbers of unre- come to but one conclusion in favor of FTS hours, corded and we assume that jury the and Accordingly, average UniTek. the followed the district court’s by instructions unpaid by number of hours worked testify- not including commuting time that doe's ing technicians, and nontestifying on based require not compensation. jury’s the findings and the estimated-aver- age approach, just resulted from a and Damages E.Calculation reasonable supported by inference suffi- FTS and lastly challenge UniTek the cient evidence. district court’s damages. calculation of D.Jury Commuting Instruction on (1) They argue that the district court took Time the calculation of damages away from the jury in violation of the Seventh Amend- In challenge jury’s another to the deter- (2) ment and used an improper and inaccu- worked, mination of unrecorded hours rate methodology by failing to recalculate FTS and UniTek argue that the district hourly each technician’s by apply- rate and by court instructing jury erred on multiplier. a 1.5 questions These are commuting time. FTS and UniTek do not questions law or mixed of law and fact that dispute that the district court accurately Bell, we review de novo. See Harries v. jury commuting instructed the on when requires time compensation; they instead that, law, argue as a matter of the instruc- begin We with the Seventh

tion should not given have been because a arguments. Amendment dissent juror reasonable could not conclude that that claims the Seventh Amendment was compensation commuting time was re- violated procedure because the trial result quired here. (Dis. ed in “non-representative” proof

“This a posits [c]ourt reviews district requiring jury standard court’s jury choice of instructions for in any abuse collective action to “determine the Ross, of discretion.” United States 502 ‘estimated average’ plaintiff that each (Id. rate, rejected (emphasis anyAt FTS at 423 add- and UniTek receive” should impanel court’s sec- ed)). requirement district offer an Such individual findings ond to make additional jury does member of a collective action each They perform damages calculation. had principles of and comport rights jury” cited “constitutional to a their proof, and precedent representative on trial, at the but at status end confer- contradict of the case as would certification damages ence asked if court place. action in the first a collective panel wished have “a come UniTek in, panel, select another and submit the Here, moreover, proof was (R. 444, damages.” PagelD issues of jury its and the rendered 10171-72.) “No, responded, Their counsel nontestify- testifying for the findings your I don’t think that’s allowed ... honor. with the dis ing plaintiffs accordance (Id. 10172.) The for these claims.” court Finding that “the evi charge. trict court’s ask, if upset went on to ‘You would be we by presented dence jury up did trial have to finish dam- who established] testified (Id. 10173.) ages question?” Counsel hours,” unpaid they worked overtime “Well, Honor, responded, your again, it’s finding accordance with applying position appropriate.” our that that’s not that “those the instruction (Id.) arguments instead Banking on them did not hear from also you [would] [be] is in- estimated-average approach inference to entitled to over deemed any and that calculation appropriate jury compensation,” time determined not be suffi- supported would “proven had that all FTS Technicians evidence, cient maintained counsel accordingly made the claims.” thing, quite frankly, “the that’s left for the findings necessary factual court entry appropriate and that is remaining arithmetic of the complete judgment ... either for the defense or estimated-average approach. Seventh for and with zero dam- require jury, not in Amendment does (Id.) ages.” After court asked for a court, perform of the district a stead approach constructive from the “more de- or mathematical calculation of formulaic fense,” agreed briefing counsel to a sched- damages. Corp., See v. FedEx Wallace (Id. damages. ule on calculation 2014) (“[A] court 10181.) subsequently qualified Counsel judgment render as matter of law and UniTek “not waiving FTS jury portion as to some of a award [with ... changing position,” or their but the implication out of the Seventh Amend positions referenced were those relied by legal if it is if compelled rule or ment] upon at the status conference—the esti- no genuine there can be issue as to the mated-average-approach disagreement and damages.”); calculation of also correct see sufficiency-of-the-evidence argument. Fashion, Inc., v. 2011 Maliza MAR-OS record, Based on this FTS UniTek CV-07-463, *1 No. 2010 WL any right and waived to a jury abandoned (E.D.N.Y. (completing Feb arith damages they may trial have had. shortfalls, any, wages if in paid metic on plaintiff “month-by- after calculated regard In FTS UniTek’s month of the challenge determinations hours worked to the court’s district methodol to, by, wages paid plaintiff’). ogy, On for are FLSA actions overtime meant record, See, not compensatory. e.g., Seventh Amendment is be Nw. Yeast Broutin, 628, 630-31 implicated. Co. v. 1943) (finding that the FLSA “is reflect the actual increased number of upon of an em- premised the existence week, hours FTS Technicians worked each ployment recovery contract” and that au- higher hourly district court used a rate 216(b) § thorized 29 U.S.C. “does than would have been if used no violation penalty, constitute a but is considered had occurred. This approach overcompen- 216(b) (“Any § compensation”); 29 U.S.C. sated required FTS Technicians and employer who violates shall [the FLSA] pay and UniTek to more for unrecorded employee be to the af- liable overtime hours than recorded overtime in the ... unpaid fected amount hours. For the calculation to be ”). To compensation.... overtime achieve therefore, compensatory, hourly rates an purpose, its the FLSA directs overtime must be recalculated correct num- (1) wage regular calculation to include ber hours to ensure that FTS Techni- (2) rate, reg- a numerical of the multiplier pay they cians receive the would have re- (3) rate, ular number overtime ceived had been there no violation. 207; § hours. See 29 U.S.C. 29 C.F.R. § system, In a “the piece-rate 778.107. Regarding correct multiplier, regular hourly pay computed rate is piece-rate the FLSA entitles workers to an together earnings total adding .5, multiplier overtime and the record piece workweek from rates and all other shows that FTS and UniTek used this “by dividing sources” then the num- multiplier to calculate FTS Technicians’ ber of hours worked in the week In pay overtime for recorded hours. ex paid.” 29 compensation which such was system plaining the piece-rate to their 778.111(a). § C.F.R. The numerical multi- technicians, provided FTS and UniTek plier piece-rate for overtime hours in example receiving where a technician' (A regular system pay. is .5 the rate of Id. $1,000 in piece rates for 50 hours of work is “a piece-rate paid worker entitled compensa would receive overtime $100 regular sum to one-half this equivalent engineering tion. Reverse this outcome pay multiplied by rate of the number regular gives following us the formula: 40 in the hours worked excess of multiplied by rate of a .5 mul $20.00/hour Only pay week.... half-time additional tiplier Plugging and 10 overtime hours. required in such the employ- cases where multiplier of 1.5 into the formula would already straight-time ee has received com- pay, of overtime result overcom $300 pensation piece by supplemen- rates or technician, hypothetical as it pensating this worked.”). tary all payments for hours re accordingly did FTS Technicians. We rate, hourly As the amount of use of a multi verse district court’s 1.5 system time” in a “straight paid piece rate plier. regardless the same of the num-

remains of the court’s cal Reversal district complete ber hours required of damages of not culation does necessitate jobs. of piece number The fixed nature of liability. trial “the new We have author piece-rate compensation rates shows to the ity upon to limit the issues remand paid by was for all hours worked for a trial” and such [c]ourt new Technicians, [district regardless of whether “not does violate the Seventh in- action time It also creates an was recorded. Thompson v. 167 Camp, of Amendment.” relationship verse between the number curiam). (per working F.2d 734 hourly hours worked and rate: hourly remand to the district court to recalcu more hours lowers a technician’s We hourly opinion. not consistent with this By recalculating damages rate. rates late adjust plaintiffs’ hourly wages by failing to III. CONCLUSION by multiplier. an incorrect using reasons, we AFFIRM foregoing For the way correcting majority goes part of the certification of this case court’s the district problems reversing these the district action, repre- of allowance as a collective go calculation. I would all court’s trial, testimony at and use of sentative way and correct the first two errors of approach; REVERSE estimated-average as well. damages; court’s calculation the district A decision con Supreme recent Court to the district court and REMAND correct these two firms that we should with damages consistent recalculation of Foods, Inc. v. Tyson other errors now. opinion. Bouaphakeo that a consider held statistically persuasiveness adequate AND IN PART CONCURRING only if each class representative evidence IN PART DISSENTING could have used that evidence member SUTTON, Judge, Circuit — -, an individual action. U.S. (2016). dissenting in concurring part S.Ct. 194 L.Ed.2d That every here, multi- questions Two loom over part. making not followed principle was rep- action: plaintiff representative Tyson Who Foods our decision inconsistent group resenting whom? And can the one and inconsistent with the Seventh Circuit’s it be a fairly represent the other? Whether resolution of the same class-action issue joined Rule Espenscheid class action under Civil nearly setting. identical LLC, Rule or as here a action under Civil DirectSat USA § action under 216 of the Fair any collective If other hints we needed 216(b), Act, § strayed, Labor Standards U.S.C. that came when that we have proof only way in which first Supreme Court vacated our decision liability—evidence controversy some claimants in this case and remanded the any sense prove liability as to all—makes light Tyson to us for reconsideration in theory liability testifying of the is if the my colleagues Foods. I don’t doubt that (or mirrors is at least substantial- position, I do have reconsidered but to) theory liability of the ly correctly similar interpreted doubt that have nontestifying plaintiffs. impera- The same opin and the other Foods Court’s damages stage, tive exists at the where ions in this area. For these reasons and any representative below, must match trial court I respectfully those elaborated must representative theory with a dissent. damages. The Fair Collective-action certification. judges permits employees trial handled this Labor Standards Act The three who were) bring lawsuits on behalf of “themselves (collectively case as it did heed trial, employees similarly situated.” 29 Before the dis- and other requirements. these 216(b). § whether mistakenly trict court certified this case as U.S.C. To determine situated,” action, “similarly we look plaintiffs one collective not a collective action are (1) sub-classes, employment “the factual and set- with two or three as the vari- (2) “the conflicting liability tings plaintiffs,” ] theories of re- of the individual[ ous and trial, plaintiffs defenses to which the quired. approved At the district court different (3) subject,” degree “the assessing damages may a method of that violat- be and trial, certify- procedural impact After fairness and ed the Seventh Amendment. action,” ing miscalculated the action as a collective the district court

417 v. Ed among other considerations. O’Brien cient—was self-induced and not a violation (6th Enters., all). What, Donnelly then, 575 F.3d jury is the with tasked omitted), (quotation abrogated Cir. delivering a class-wide It verdict to do? grounds by Campbell-Ewald on other Co. say must either that the defendants are — U.S.-, Gomez, 663, 193 v. 136 S.Ct. liable as to the entire class or that (2016). Helpful L.Ed.2d as this check defendants are liable to no as one—when be, not list it should the core obscure the truth lies in somewhere the middle. inquiry: plaintiffs similarly Are situated Just as it would be unfair to impose class- their and liability such that claims dam wide for liability all employees based ages can be tried on a class-wide and on the “representative” testimony that 7B representative basis? Charles Alan supervisors some employees directed not al., Wright Federal Practice and Proce et report hours, their so it would be unfair 2005). (3d § 1807 dure ed. to deny liability class-wide based on the “representative” testimony su That is where the fall short. some merely They pervisors urged employees claim that violated defendants Foods, in the Fair Labor Standards Act three more efficient. See (1) ways: by falsifying employees’ distinct at 1046-47. (2) timesheets; by instructing employees to The evidence trial illustrates (3) hours; underreport their creat problem. Hunt, with Start Richard who employees incentives for to underre- he dock said was instructed “to an hour for port by rewarding “productiv[ity]” and lunch it or [he] whether took not.” R. 456 scheduling fewer for those who shifts Crossan, Compare at 125. him to Paul who many R. at 8. worked too hours. underreported testified that he his time problem plaintiffs’ approach jobs “because wanted more for more [he] jury accept that a could some their [him]self,” money thinking he would others, rejecting of liability theories while if not be scheduled for shifts he extra yet gave jury only the verdict form many R. recorded too hours. 448 at 77. all-or-nothing-at-all option. Assume compare Stephen Then them both that, plaintiffs allege, supervisors at a Fischer, said who he was instructed to certain of the defendants’ offices subset occasions, underreport his hours on some (which employees to underreport directed over-report was told to his hours on other FLSA), supervisors

violates the at a while occasions, still other cases underre- merely urged distinct subset of offices em ported because he wanted to routed “be (which ployees be more normal efficient daily any miss R. at 78. not work.” FLSA). ly will not violate the See Davis v. many play—different With so variables in Lion, Food 1275-78 testimony employees offering different 1986); Mills, Quality Brumbelow types about different of violations—how Inc., 1324, 1327 A jury fairly could a assess statutory could decide that violations class-wide, I one-size-fits-all basis? for one group occurred the first of offices but do not see how could be done. (perhaps not the second because calls recently explained Seventh Circuit efficiency rise to level of a did not all violation, how of this should work its unani- statutory perhaps because the mous not opinion Espenscheid. did The case present enough not only industry in the supervisors to conclude that arose same pressured underreport, per concerned same worker-incentive haps only pressure—to be effi but it also the same plans, because involved defen- alleged, plaintiffs’ counsel Espenscheid, violation[s]” this case.

dant in apt plan term opposed Now that use the court’s to “refus[ed] 772-73. certification, denying alternative, suggest situated. In including a feasible a explained “complication Posner Judge damages.” determining method of feasible by underreported a who worker presented adopt Id. at 775-76. We could the Seventh time, under pressure but did ... not his so case, as in this opinion Circuit’s our own but because he wanted by defendant] [the highlights precisely prob- since it the same company with his efficien impress to the plaintiffs’ plan. lems that afflicted trial problem, at 774. The cy.” Id. employees here did not offer a Because case, in plaintiffs were was some determining” liability method of “feasible underreport; to others underre- structed damages, district court should company’s efficiency meet ported In have decertified their case. the last that, alleged and still others while goals; analysis, decision the Seventh Circuit’s re- they correctly, recorded time their Foods, spects lessons of wages. company miscalculated their Id. at 1048-49, S.Ct. at our decision while USA, 773-74; see DirectSat Espenscheid respect not. does LLC, 09-cv-625-bbc, No. WL All of this does not mean that a collec- (W.D. 23, 2011), May *2 Wis. amended tive not an option action was our It case. (W.D. by May 2011 WL 2132975 Wis. plaintiffs means should have ac- plaintiffs Because the offered no by for their distinct theories counted divid- “distinguish benign ... underre- way sub-classes, ing themselves into one corre- from conduct de porting unlawful [the liability to each sponding theory under way prove no other fendant]”—and the statute—and indeed under their own multiple, conflicting liabil theories of a plan. trial That is tried and true method ity all-or-nothing on an class-wide basis— representation, of collective-action Circuit refused to let them the Seventh plaintiffs from nothing prevented using it collectively. 705 F.3d at 774. proceed here. that, The court also worried because offer two reasons for con- employee perform each did not the same worked, cluding that their plan trial even tasks, they sufficiently were not similar First, argue they without sub-classes. a determination of liabil- permit class-wide they “unified” subject to company- a 773; damages, assessing ity or id. at “time-shaving wide policy” and that their “separate would require eviden- plan prove trial enabled them to this poli- tiary hearing[]” for each member of the cy’s existence on class-wide basis. Appel- id.; class, plan plaintiffs’ to use lees’ But Br. 41. what was the relevant “representative” with their hand- proof it that policy? supervisors Was should al- employees not work picked would because employees’ they ter That timesheets? the various theories of made employees instruct underreport should impossible representative employ- to have subtly their hours? That 774; should en- class, single ees in a id. at and that courage employees underreport urg- small, experience “the unrepresenta- ing them to be efficient? The sample” testifying tive workers could company-wide “policy” “an define such support inference about the work lofty encompass- generality level of that it remaining plaintiffs, time of’ the at 775. id. policies, correspond- es Although multiple the district court had each one proposed type statutory into to a different viola- to divide three sub- classes, tion to no at all. “corresponding types to the three and some violation here, “benign underreport- not bar company FLSA does the employs multiple try impress ing” where workers “to the policies, did, as FTS and allegedly UniTek company efficiency hope in the [their] the bring separate must actions obtaining promotion of a or a maybe better (or or prove using violations sub-classes job just being to elsewhere—or avoid laid any plan permits other trial class-wide 774. Espenscheid, off.” 705 F.3d at Nor adjudication). majority my warns that does it violate the FLSA to reduce an approach compel “would employees to amount of work in- employee’s to avoid bring separate collective action ... creasing overtime costs. See 29 C.F.R. unreported work required by employer 785.13; § Dep’t see also Labor U.S. in, clocking before and another for work Enters., Inc., Cole 779-80 required clocking after out.” at Supra 1995); Seating Inc., Kellar v. Summit But of course that of granularity,” “level Yet what id. at is not required, and crying wolf link purports (cog- to the claims plaintiffs’ won’t it so. All required make that’s is an alike) is non-cognizable merely nizable and approach that allows plaintiffs litigate theory—at vertigo-inducing height the collectively their claims they when generality—that the defendants violated can prove their collectively. claims provisions the FLSA. A overtime the company-wide “time-shaving” policy is law- Second, plaintiffs argue jury the that the yer talk for a company-wide policy vio- could liability by relying assess class-wide lating the FLSA. That does not do the that, on “representative” proof. They note assuredly trick. And most not do does trial, before the parties agreed to take the when the does trick one of theories discovery “sample” fifty employ- on , even violate the FLSA. ees—forty plaintiffs, chosen ten the plain- the R. at majority that, defendants. 249-1 2. The by requiring worries policies, tiffs litigate employees sub-classes relevant called seventeen of those my liability would limit approach testify doh- at trial. This testi- ning-and-doffing But are not cases. those mony, say plaintiffs, gave in only types compa- which cases enough reach information to a class-wide ny-wide policy—in singular—permits verdict, employees which means the liability resolution of class-wide dam- similar to sufficiently permit collective-ac- UniTek, ages. Imagine that FTS and rath- tion certification and reso- collective-action employing practices er than different lution. offices, supervisors every different at told That works some proof location to dock pay who cases not mean it works in cases. does all hours; fifty at least or worked declined to Foods, Tyson ques- 1048. The pay employees compensable commut- represent tion—always—is fairly who can ing time; or stated that technicians each If proof whom. Id. 1047-48. shows paid office should not be for their lunch systematic underreporting by employ- break, it; through if they even worked of, say, er time it to don and doff takes punch-in systematically used clocks protective clothing—giving same employees’ under-recorded time. The same min- type of workers credit for three prove in each of these eases could basis, proof utes when shows it takes seven a class-wide minutes—representative proof just which works means could use the collective- action fine. In that there litigate setting, device their claims. See is evidence Foods, if, But long S.Ct. 1042-43. about how it takes workers don liability differ- employees working for at that same deficien- proof

and doff supervisors But I am ent under different cy applied plaintiffs. was to all locations believe, pressed skeptical, exactly representative indeed hard to evi- the sort allege theory one plaintiffs that who dence that fails to establish class-wide lia- (e.g., company my liability altered bility. nom- Drawing inferences from such timesheets) testify on behalf of those can inally evidence is neither (e.g., underreported I allege another who just. reasonable nor my my supervisor time because directed Foods, true, Tyson it is is a different to) I (e.g., my altered me or still another facts. are. case with different Most cases urged company because the me to time reason, to And for that the court is correct efficient). were to un- Plaintiffs who told say Tyson “compel” Foods that does very tell us little derreport, example, for to earlier change Supra us our decision. offices, plaintiffs at different work- about analysis wrong 400. But that answers the un- supervisors, under different who question. The Court not enter does improve efforts derreported on to based granting for petition “GVRs”—orders efficiency. why majority goes That is vacating a writ certiorari the lower astray enough when that “it is suggests it light court for decision reconsideration to that testified as each means technicians intervening authority—only when new common, of enforcement of the FLSA-vio- compels differently. us to As authority rule question at 409. lating policy.” Supra The not, often GVRs are used when inter- as “means of enforce- is not whether each vening authority suggests a better answer was it is each represented; ment” whether here, Just so as the Seventh exist. represented means of enforcement was already Circuit has concluded. proportion employment to its actual anyone Does doubt how case would FTS and UniTek across entire class— come out if the roles were reversed—if something plaintiffs at- that never testifying plaintiffs most of the underre- tempted prove. to ported their own while a few were on Supreme intervening deci- Court’s hesitate, to I told do so? We would sus Foods, Tyson of which the district sion pect, say testifying employees to benefit, did not confirms court have nontestify- “representative” of this more. Not all inferences all ing peers, if the especially jury returned evidence, from it drawn verdict is sauce for defendants. What clear, makes to establish suffice class-wide one, however, presumably should be damages. 136 S.Ct. at 1048. other, making sauce for the the district “Representative is statisti- court’s certification order for de perilous inadequate on cally implausible or based doubt, No fendants and alike. assumptions could not lead a fair or permit plaintiffs rely actions collective accurate of the uncompensated estimate representative proof. proof But employee hours has worked.” Id. representative—and plain must be here “If sample 1048-49. could have sus- tiffs’ own evidence demonstrates finding tained reasonable remotely representative. Ty was not See employee’s hours in each individu- worked Foods, 1048;Espenscheid, son S.Ct. at action,” example, sample al “that is a 774; Sec’y 705 F.3d at see also Labor the em- permissible establishing means of (1st DeSisto, in a 793-94 ployees’ hours worked class action.” 1991); contrast, Inc., v. Md. By sample Hosp., Reich S. Id. 1046-47. fails to account for the various theories of peers, they objected claim that Anderson v. Mt. plaintiffs’ plan Pottery permits

Clemens Co. this trial representative proof to use at trial. Then plan. See 328 U.S. 90 they objected to it three more times. We (1946). L.Ed. But that is a case about right have no penalize them for failing Foods, liability. damages, not See objection raise this discovery before Pottery 136 S.Ct. at 1047. Mt. Clemens targeted when the problem did not materi- that, holds an employee has shown after discovery alize until complete. was after that “performed he work has not been way, Put another there is a difference paid FLSA, in accordance with the” he alleging policy between a uniform of un- may “show the amount and extent of that derreporting and proving one. Once dis- just work as a matter of reasonable covery showed there was no uniform poli- 687-88, inference.” 328 U.S. at 66 S.Ct. cy, properly objected the defendants “just 1187. The and reasonable inference” representative proof. Foods, Tyson See 136 rule, words, only play other comes into S.Ct. at 1048-49. when of damages” the “fact is “certain” damages” but the “amount of is unclear. plaintiffs The lean on v. O’Brien Ed 688, Id. at 66 S.Ct. 1187. As ex- O’Brien Donnelly Enterprises overcome these plains, Pottery “Mt. Clemens prog- its problems but it cannot weight. bear the eny proof do not lessen the standard of for (6th 2009). 575 F.3d 567 Cir. O’Brien said' showing that a FLSA violation occurred.” plaintiffs similarly are situated when 602; Foods, Tyson 575 F.3d at see 136 also “their claims unified [are] common the- 1048—49; Coals, S. v. Ct. at Shultz Tarheel violations, ories of statutory defendants’ (6th Inc., 583, 1969) (per 417 F.2d 584 Cir. proofs even if the of these theories are curiam); Leventhal, 52, Porter v. 160 F.2d inevitably individualized and distinct.” Id. (2d 1946); 58 v. Cir. Kemmerer ICI Ams. point that, at 585. But O’Brien’s was if (3d Inc., 281, 1995); 70 F.3d 290 Cir. plaintiffs plan offer a trial that enables Ind., Family Brown v. Stores Dollar prove them to their case on a class-wide (7th LP, 2008); 534 F.3d 594-95 Cir. basis, permit the court should the suit to Carmody City v. Kansas Bd. Police proceed as a collective action. Such trial Comm’rs, cases, may plan, in some involve “individu- IPB, Inc., 2013); Alvarez F.3d presentations proof; alized” other 914-15 The case pro- thus cases, representative proof may suffice. Id. plaintiffs’ vides no support claim cases, But in all plaintiffs must offer some “re- they can show under a reasoned method for the assess proof. Appellees’ laxed” standard of Br. liability—and just class-wide that is what plaintiffs counter that the defen- plaintiffs Tyson failed to do here. See agreed discovery, dants to representative Foods, 136 S.Ct. 1048-49. As for claiming they necessarily means holding, opt-in O’Brien’s it was that agreed representative proof at trial. But plaintiff was not situated not step require take the one does to al- plaintiffs, other “because she failed only way other. The to determine whether lege that she from” “unlawful suffered group plaintiffs one is practice[s]” employees. those endured gather another is to information about O’Brien, here, so 586. Just both groups, typically by conducting dis- failed to defendants, where offer means covery. taking plaintiffs When after depositions, proving learned suffered from “unlaw- selected em- ployees not ful practiee[s]” a class-wide basis. record a com- (and plaintiffs failed to majority) testifying

Finally, time- of hours on their parable number the Sev- case from distinguish this try to non-testifying peers. sheets as their It Espenscheid. Circuit’s decision enth a trial adopted nonetheless district court applies the Circuit true that the Seventh that each of the that assumed procedure to assess standard Rule 23 class-action non-testifying employees testifying and “similarly situated” are whether purposes of cal- similarly situated was Rule rejected has our circuit and that damages. procedure That culating 23(b)(3)’s inquiry as el- “predominance” nature of non-representative ignored the analysis. “similarly situated” of the ement the Seventh but it also violated proof, F.3d at Compare Espenscheid, Foods, Amendment. See O’Brien, But that F.3d at 584-85. at 1049. the Sev- both makes no difference. Under own, our one approach and enth Circuit’s calculated the district court Here’s how satisfy “similarly the way plaintiffs jury returned a ver- damages: the When “common the- allege is to inquiry situated” it identified the aver- plaintiffs, dict for the proved can on liability ories” weekly that each of number of hours age O’Brien, 575 F.3d basis. See class-wide employees had testifying the seventeen exactly the Seventh Cir- That is what on their but had not recorded worked missing when it held that to be cuit found averaged to- timesheets. The court then failed to distin- Espenscheid plaintiffs the number of unrecorded hours for gether the from unlaw- underreporting guish “benign employee, assumed that testifying each at 774. And that is 705 F.3d ful conduct.” number of average was also the this value majority The exactly missing is here. what 279 non- hours for each of the unrecorded involved a Espenscheid also notes dam- employees, and awarded testifying than this case. plaintiffs larger group class as a whole. ages to the the bearing no Seventh But that had bars The Seventh Amendment it. analysis. Nor could Whether Circuit’s approach. judge-run, average-of-averages twenty action consisted the collective by jury,” the Amend- fact tried “[N]o thousand, problem employees or two reads, “shall be otherwise re-exam- ment prove could not that those was States, any in of the United ined Court reason- liability—and the same class-wide of the common according than to the rules of two-hundred- applies to the class ing Const, amend. That means law.” U.S. VII. not today. An error does plus plaintiffs own esti- may “substitute] a court not its “just” it affects harmless because become damages which the mate of the amount “just” companies. people or two ought to have to enter plaintiff reeovered[ ] any If class-wide liabil- other sum judgment Amendment. an absolute Seventh non-representative proof, by jury.” Lulaj ity turns on than that assessed finding. And it should liability Corp., skews Wackenhut omitted). a skewed Yet that is surprise (quotation no one when damages jury awarded leads to a skewed the court did. The just determination what case. testifying plain- it in this happened damages calculation. So seventeen tiffs, its own and without but the court—on corrects one majority to its credit that dam- jury findings—extrapolated any I damages calculation. problem with the remaining plaintiffs. to the ages award pro- plaintiffs other. The would correct the (or, jury’s star- Foods confirms the jury Tyson from which the vided no evidence damages. “Once a court) determining in alas, ring role conclude could finds evidence to be jury so, district court admissi- receive. After the does judge ble, is, in persuasiveness general, its a decides that the remaining five Foods, are similar to their jury.” Tyson peers matter for the decides too, damages should receive may at 1049. “Reasonable all in the S.Ct. minds dif- ab any sence of finding by jury about the average fer as to whether the time ... similarity of the two of plaintiffs. classes It probative calculated ... as to the time jury’s then doubles the gives award and actually employee.” worked each Id. all damages plaintiffs. ten I have little question But ... “[rjesolving is the doubt we would find Seventh Amend province jury,” near-exclusive of the not violation, majority ment and the says noth judge. jury may Id. The this case suggest Chauffeurs, otherwise. See thought appropriate extrapo- not have Helpers, Teamsters & Local No. 391 v. damages remaining late the award to the Terry, 558, 570, 494 U.S. Indeed, plaintiffs. (1990); 108 L.Ed.2d 519 Wallace v. FedEx Foods more than halved the rec- Corp., 764 F.3d 591-94 ommended in that expert case. Id. That conclusion should not change simply at 1044. because this case arises the collective- defend this procedure by context, action where the “estimated aver noting that a court judgment “render age approach” accepted practice. is the portion a matter of law to some as The missing ingredient is that jury, jury by if it is a compelled legal award rule judge, the must still determine the “esti genuine or if there can be no issue as to average” mated that plaintiff each should damages.” correct calculation of Lulaj, the my receive. no knowledge— And court to at 766. But the court district did either in the collective-action context or damages legal not award a based on con- procedure by outside it—has endorsed a clusion; it finding did so based its jury damages which the awards testify to non-testifying plaintiffs failed to record ing plaintiffs judge while the awards dam hours, the same number of on average, as ages to their non-testifying counterparts testifying their peers. That is a factual no finding jury with from the as to the funding about the number of hours worked group. latter by plaintiff. each And the Seventh Amend- Nor did the district prob- court cure the jury, judge, ment means that a not a must jury lem when it instructed non- Foods, finding. make that See testifying plaintiffs by would be “deemed S.Ct. 1049. inference to be entitled to overtime com- majority portrays The the district pensation.” R. 463 at 28. This instruction damages court’s determination as a matter that, only if jury liability told the it found “arithmetic,” a “formulaic or mathemati- respect testifying plaintiffs, with to the Supra cal calculation.” at 414. How could finding liability respect also was to with finding by jury that be? There was no non-testifying plaintiffs. The court did about the overtime hours worked jury damages inform the that its calcu- non-testifying employees and no thus basis averaged together lations would be judge apply for the to do the math or a finding. a make class-wide Nor did the Imagine plaintiffs bring formula. that ten a charge jury determining court gives jury lawsuit. The court a verdict average plaintiff estimated each form, listing did, plaintiffs the names of five All in should receive. the instructions jury effect, and asking jury judge to write down the was tell the damages damages. go amount of calculate But it those should would should n without majority cannot correct in the alternative saying that a court claims violation in- that the defendants forfeited their claim Amendment a Seventh jury Amend- trial on true. The jury damages. a Seventh a Not forming the opposed court’s rul- is to occur. defendants the district ment violation about damages, that the court calculate could reason, Clemens Pot- For the same Mt. objections reiterated their It nothing to this case. is tery has do with status post-trial conference. Consistent It did not not a Amendment case. Seventh objections, judge did with these the district jury, judge, rather than permit not decide that defendants forfeited the testi- whether the decide He “at a point. explained instead he was non-testifying employees were fying and little bit of a loss” he had not tried because on an and thus could be assessed similar only that a “realize[d]” the case “now” average it in- approach.” And “estimated 444 at In “residual issue” remained. R. 6. pre- compensation employees’ for volved call a response, the district court offered to activities, work which took liminary jury damages, second calculate for each roughly the same amount of time steps asked the defendants what would be 690-93, employee perform. 328 U.S. Id. at 6-7. Counsel re- “appropriate[J” case, today’s 1187. thing ... sponded, “[W]e think the however, found of unre- that the number appropriate that’s left and that is the tes- widely among corded hours varied entry judgment ... for the de- either eight tifying technicians—from a low of fense or ... with zero twenty-four, per high hours week damages.” position,” Id. at of our “[P]art with considerable variation between. concluded, any counsel “is to be clear for range This of evidence increased the risk type post-trial appellate record” that the under-compensation employees who ... waiving defendants “not (and over-compen- worked the most hours changing position.” at 19-20. No- Id. fewest) for those sation who worked exchange where do the defendants way Pottery in a that Mt. never Clemens argu- their Seventh forfeit Amendment risk of needed to confront. And ment; they at times indeed reaffirm it. Of heightens keep- importance course course, if even had forfeit- defendants damages where it determination right ed or for that matter waived their belongs—with which is best jury, (which not), they appro- trial did equipped to intricate fact- undertake the priate response would have been to con- finding required employees’ un- when damages, duct a bench trial on not to span broadly. recorded hours so no impose damages as matter of law with Home, Herman v. Group Palo Foster finding anyone—judge jury—about Inc., 1999), 183 F.3d 468 is of a right amount. v. Singer United Cf. piece. Pottery It said that Mt. Clemens 24, States, 783, 380 U.S. juries damages framework enables to find (1965). L.Ed.2d 630 just “as matter and reasonable infer- keep when ade- employers ence” do not

quate employees’ imagine records of time. Id. It is not difficult this how gone differently. at 472. Nowhere does Herman endorse case could have case, procedure permit- organized used this which could have themselves infer) (not sub-classes, one corresponding the court to even into to each ted assume See, type alleged statutory that all failed to record the violation. Lake, number of 2:07 cv e.g., County same hours on their timesheets. Fravel v. No. (N.D. at *3-4 Ind. 2008 WL July they com- Or could have Labor, which

plained Department to the employees’ seek be- 216(c); §

half. See 29 Espensckeid, U.S.C.

705 F.3d at But the did they

take either Because not do route. did proposed plan

so—because a trial statutory violated both and constitu-

tional requirements—we should remand them propose case and allow new

procedure permits reasoned and fair

adjudication of their claims. Foods,

See 136 S.Ct. at 1048-49. majority seeing things differently, I

respectfully dissent. LLC;

MICHIGAN FLYER Indian

Trails, Incorporated, Plaintiffs-

Appellants/Cross-Appellees,

WAYNE COUNTY AIRPORT

AUTHORITY, Defendant-

Appellee/Cross-Appellant.

Nos. 16-1205/1255

United Court of Appeals, States

Sixth Circuit. January

Argued:

Decided and Filed: June

Case Details

Case Name: Edward Monroe v. FTS USA, LLC

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 21, 2017

Citation: 860 F.3d 389

Docket Number: 14-6063

Court Abbreviation: 6th Cir.