Unpaid Work After Shift Ends Can Equate to Unpaid Wages

Sacramento, CAAn unpaid wages lawsuit that began a few years ago against Mexican restaurant chain Chipotle Mexican Grill (Chipotle) took on an added dimension back in September when a US Congresswoman urged the US Department of Labor (DOL) to investigate Chipotle for alleged wage theft. The lawsuit, together with overtures by US Representative Rosa DeLauro (D-Connecticut), could be significant for California-based employees of the chain with overtime pay concerns associated with off the clock work, or donning and doffing.

According to a Reuters report (09/12/16) some 10,000 current, and former employees of Chipotle have joined a class action unpaid overtime lawsuit filed two years ago by Leah Turner. At the time, Turner was employed as a manager at a Chipotle restaurant in Colorado. Turner alleged in her unpaid overtime lawsuit that Chipotle employed timekeeping devices that punched employees off the clock routinely and at set times, even if workers were still actively engaged in their tasks.

This equates, say plaintiffs, to non-payment of overtime pay from routinely working off the clock – which is not dissimilar to non-payment of wages for time spent donning and doffing employer-mandated uniforms and safety equipment necessary to perform the job.

Many a donning and doffing lawsuit asserts that should employers require employees to wear specific uniforms, gear and specialized equipment necessary to the job, then time spent donning such gear and clothing, then taking it off again, should be on the employer’s time and dime, not the employee’s.

A lawsuit filed in early 2015 in US District Court, Eastern District of California (Maria Del Carmen Pena, et al., Plaintiffs, v. Taylor Farms Pacific, Inc., d/b/a Taylor Farms, et al., Case No. No. 2:13-cv-01282-KJM-AC) made just that point. Plaintiffs in the lawsuit, which was proposed as a class action, alleged that defendant Taylor Farms failed to include the time workers spent donning, doffing and then cleaning their protective equipment when overtime pay was calculated, an alleged violation of federal statutes as well as California overtime law.

While the overtime and wage complaints were granted class action status, the California donning and doffing issue was denied certification due to a lack of consistency within the proposed class. The judge determined that different employees were required to wear different gear, which did not provide a uniform time frame for donning and doffing. Due to the variety involved, the judge determined class certification for the donning and doffing issue was not warranted.

In the meantime, over at Chipotle, the chain characterized the Congresswoman’s call for a DOL investigation as “misdirected,” said company spokesman Chris Arnold, in a statement to Reuters. “We have maintained from the outset that this case is without merit and will vigorously defend our employment practices.”

Turner is undaunted, telling CNN Money (09/01/16), “From day one, I was working off the clock at Chipotle.”

DeLauro, in her letter to the DOL asking for an investigation, noted that alleged wage theft, if true, would violate and contradict federal law [together with violations of overtime pay laws observed in California for Golden state workers], “depriving workers of the wages and earnings to which they are legally entitled.”

The case is Turner et al vs Chipotle Mexican Grill, Case No. 14-cv-02612, US District Court, District of Colorado.