Meadows v. NCR Corporation

Filing 191

MEMORANDUM Opinion and Order. Defendant's motion for summary judgment, 142 , is denied. Signed by the Honorable Manish S. Shah on 11/9/2017. [For further detail see attached order.] Notices mailed. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL MEADOWS,
Plaintiff,

No. 16 CV 6221

v.

Judge Manish S. Shah

NCR CORPORATION,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Michael Meadows brings this action against his employer, defendant
NCR Corporation, for unpaid wages in violation of the Fair Labor Standards Act, 29
U.S.C. § 201, et seq., and the Illinois Minimum Wage Law, 820 ILCS § 105/1, et seq.
NCR moves for summary judgment. For the following reasons, NCR’s motion is
denied.
I.

Legal Standards
Summary judgment is appropriate if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). A genuine dispute as to any material fact exists
if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
party seeking summary judgment has the burden of establishing that there is no
genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). A court must view all facts and reasonable inferences in the light most

favorable to the non-moving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735
F.3d 962, 965 (7th Cir. 2013).
II.

Background
Meadows has worked for NCR as a Customer Engineer for over eight years.

[166] ¶ 8.1 He is a non-exempt employee who is paid on an hourly basis. Id.
Although Meadows acknowledges that NCR has written policies deeming all work
time as compensable time and prohibiting employees from failing to record their
work time, he explains that in practice, the policies are routinely ignored. [165-2] at
26, 95:3–96:7. Each of Meadows’s territory managers have instructed him not to
follow NCR’s written policies, id. at 26, 97:5–10, and they have encouraged him to
work off-the-clock, id. at 23, 83:24–84:1.
A. NCR’s Written Policies
NCR requires CEs to read and periodically review the NCR U.S. Customer
Engineer Human Resources Handbook so that they are familiar with and can abide
by NCR’s policies. [165-3] at 3–4. If CEs have a question about “the content or
interpretation” of the policies, the handbook directs CEs to contact their managers
or to consult with “HR Central.” Id. at 4. These written policies provide specific
details about how CEs should schedule their workdays.
Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are taken from the CM/ECF header placed at the top of the filings. The facts are largely
taken from Meadows’s responses to NCR’s Local Rule 56.1(a)(3) statement, [166], and
NCR’s responses to Meadows’s Local Rule 56.1(b)(3) statement, [182], where both the
asserted fact and the opposing party’s response are set forth in one document. Any
arguments raised in the Local Rule 56.1 statements, additional facts included in responses
or replies, and statements that are unsupported by admissible evidence (or where a party
fails to follow Local Rule 56.1’s direction to cite to supporting material in the record) will be
disregarded. Only facts that are properly controverted will be considered disputed.
1

2

NCR assigns each CE a “regular work shift,” which territory managers have
the discretion to change based on staffing needs, workload, and other factors. Id. at
7. At least thirty minutes before a CE’s scheduled shift, the CE must check in with
the “Operations Center” and update his whereabouts. Id. at 8. The handbook states:
“In total, these activities should take no more than one or two minutes to complete.”
Id. Beyond this requirement for CEs to “briefly” check their mobile devices to
determine the location of their first assignment, CEs are prohibited from
performing any work before the start of their scheduled shifts. Id. at 15. The first
thirty minutes of a CE’s commute to his first customer worksite is not compensable;
accordingly, the handbook prohibits CEs from performing work (taking calls or
answering emails for longer than one or two minutes) during that time.2 Id. at 9.
At some time during their shift, NCR expects CEs to take an unpaid lunch
break. Id. at 11. Since a CE’s schedule “flexes to meet customer needs,” NCR asks
CEs to use their “best judgment” in deciding when to take a lunch break during
their shift. Id. Immediately before taking a lunch break, CEs must inform the
Operations Center that they are doing so, and CEs must update their status via
their mobile devices to indicate that they are taking a lunch break until a specified
time. Id. CEs may not work during their unpaid lunch break; NCR requires CEs to
contact their managers if they are being interrupted during their reported lunch
break Id. at 11, 15 (“If you receive a business call, text or email from NCR or a

The handbook states: “If your manager or a co-worker calls or messages you during your
unpaid commute to your first job site, you are to delay your response until you go back on
the clock.” [165-3] at 15.
2

3

customer during your lunch break, you are to delay your response until you are
back on the clock; you have the right not to answer or respond to it until that
time.”).
In addition to repairing point-of-sale machines in the field, [182] ¶ 2, CEs
also have to perform any number of administrative tasks during their shifts:
answering phone calls, responding to emails3, inputting details about service calls,
processing and ordering parts, attending mandatory training, and recording their
hours. [165-3] at 14, 15. The handbook makes clear that the time CEs spend
completing these duties is compensable work time, and that CEs should fit such
duties into their regular work shift “to meet productivity goals.” Id. at 14, 15 (“You
may need to ask your supervisor to schedule ‘admin time’ for you to accomplish
tasks requiring an internet connection, because you are not permitted to perform
these tasks at home outside of your regularly scheduled shift.”).
Once a CE completes his last call of the day, the handbook directs him to stop
working, unless otherwise instructed by his manager. Id. at 9. At the end of a shift,
CEs must check in with the Operations Center and (1) close out any completed
incidents, (2) move any active calls that continue into the next work period to an
available CE on the next shift, and (3) update their whereabouts as unavailable. Id.
at 8. The last thirty minutes of a CE’s commute from his last worksite to his home

The handbook states that NCR uses email to “communicate important company and
specific team information,” thus CEs should check their email throughout the workweek,
but that “Territory Managers will give general direction regarding the frequency with
which [CEs] should check email based upon the frequency with which email is used in [a
specific] territory.” [165-3] at 14.
3

4

is not compensable; as a result, the handbook prohibits CEs from performing work
(taking calls or answering emails for longer than one or two minutes) during that
time. Id. at 9. CEs may not resume working once they arrive at their homes. Id.; see
also id. at 15 (“Unless you have received prior approval from your supervisor, you
are prohibited from processing parts at your home.”).
Even though “NCR expects CEs to work within the work schedules set by
their managers,” CEs are nevertheless required to report any time they spend
working, even if they worked outside of their scheduled shift and even if they
worked overtime without prior approval. Id. at 15, 18. The handbook expressly
prohibits supervisors from “encouraging or even suggesting” that CEs should work
off-the-clock, but ultimately NCR places responsibility with the CEs for accurately
reporting the time they spend working. Id. at 15.
B. Meadows’s Off-the-Clock Work
NCR assigned Meadows a “regular work shift” from 8:00 a.m. to 4:00 p.m.,
[166] ¶ 8, but Meadows says that NCR required him to work before and after that
time, and that NCR did not compensate him for that additional work, [165-1]
¶¶ 10–15; [176] ¶¶ 3, 6–13. When asked about his allegations that NCR requires
him to perform off-the-clock work in reference to NCR’s written policies, Meadows
acknowledged that the handbook prohibits off-the-clock work, but he explained that

5

each of his territory managers have directed him to work off-the-clock. [165-2] at 22,
79:24–80:44; id. at 23, 83:21–84:45; id. at 27, 99:15–18.6
On a daily basis, Meadows says he performs about 1.3 hours of unpaid work
for NCR.7 [182] ¶ 38. Specifically, he spends ten to forty minutes per day on preshift work, id. ¶ 21, and ten minutes per day on post-shift work, id. ¶ 35.
Additionally, Meadows says he is not compensated for the time he spends working
through his lunch break each day (NCR’s timekeeping system deducts a thirtyminute lunch break from his daily hours, and Meadows submits his daily hours
without manually editing the deduction to reflect the time he spent working
through his break). Id. ¶ 28; [107] at 7.
At least thirty minutes before his shift is scheduled to begin, Meadows says
that NCR requires him to read his emails. [165-1] ¶¶ 11, 14; [176] ¶¶ 3, 6. He
checks emails from his cell phone to get general instructions and to make sure that

“Q: Has anybody ever told you to not enter 7:20 under the circumstances and to enter 8:00
o’clock instead? A: Well, yes. Q: Who has told you that? A: All the people I named that were
my bosses.”
4

“Q: Nobody at NCR has instructed you not to work off the clock? A: No. They want you to
work off the clock. Q: So nobody at NCR has conveyed to you in any way that you’re not to
work off the clock? A: Exactly.”
5

“Q: And would you agree that language does not encourage employees to work off the
clock? A: No, that language does not, but our territory managers do.”
6

On two separate occasions, Meadows kept a personal log of the unpaid hours he worked—
the first time he did this was several years ago and the second time he did this was the
week before his deposition in this case. [166] ¶ 27. He kept the recent log in order to show
what he does before starts his shift starts each day, from approximately 7:20 to 8:00 am.
[165-2] at 5, 11:21–12:7.
7

6

he does not have to re-prioritize particular service calls.8 [165-2] at 13–14, 45:1–
46:2. The number of emails Meadows receives daily varies, but typically, he receives
emails from his manager or someone at the Operations Center who is overseeing
dispatching. Id. at 14, 46:2–20.
Before his shift, Meadows says that NCR also requires him to review work
orders from his cell phone and to communicate with the Operations Center.9 [165-1]
¶¶ 11, 14; [176] ¶¶ 3, 6. Some days, Meadows inherits a work order from another
CE, which may require him to call the Operations Center to find out where the part
for that work order is, and then plan to pick up that part before driving to that
worksite. [165-2] at 15, 50:7–24. Next, Meadows says he is required to map out his
route for the day, update his estimated times of arrivals for each assignment, and
update his status as “traveling,” “dispatch,” or “DS.” [165-1] ¶¶ 11, 12, 14; [176]
¶¶ 3, 6–7. In order to develop a route to follow from one worksite to the next,
Meadows looks at his queue and then he can determine ETAs for each customer.
[165-2] at 14, 47:19–48:1; id. at 15, 51:1–5. Sometimes he may need to restock his

Due to NCR’s service license agreements with some customers, CEs may have to respond
immediately to a customer’s work order despite what the CE already had in his queue for
that day. [165-2] at 14, 47:4–11.
8

NCR’s control or dispatch “tower” is synonymous with NCR’s “Operations Center.”
Compare [182] ¶ 8 (“As a general rule, at least thirty (30) minutes before the start of your
shift: (1) you should check in with the Operations Center either via phone or handheld
mobile device for call assignments”); with [165-2] at 14, 46:2–7 (“Q: And when you say your
e-mails, where do the e-mails you check in the morning emanate from? Who sent the emails? A: It could be from the territory manager. Or it could be from the control tower who
does the dispatching.”).
9

7

company-owned vehicle with various parts, depending on what he needs at the
worksites that day.10 [166] ¶ 8.
By 7:30 a.m., Meadows is in his company-owned vehicle commuting to his
first assignment of the day. Id. ¶ 8. It typically takes Meadows thirty minutes to
commute to his first worksite. Id. ¶ 25. Despite the fact that Meadows is not
compensated for the first thirty minutes of his commute, he often spends this time
working because he makes or receives calls from the Operations Center in order to
understand where the parts are located for specific service calls, or he commutes to
pick up or drop off parts at FedEx. Id.; [165-2] at 17, 60:20–23. For the remainder of
his shift, Meadows responds to service calls, commutes between worksites, and
performs other related activities; his schedule is very tight and it usually does not
allow him enough time to take a lunch break.11 [182] ¶ 7; [165-2] at 25, 90:21–91:2;
see also [176] ¶ 9 (explaining that he rarely gets an uninterrupted lunch break due
to the high volume of work orders and his manager’s requirement that he answer
emails and phone calls from his manager and the NCR control tower immediately).
After Meadows completes his last job in the field, he clocks out for the day,
per NCR policies, even though he is often required to perform additional work:
dropping off parts at FedEx, unloading his company car, ordering parts for his
assignments the next day, entering his time for payroll purposes, undertaking

Meadows uses a company car to travel between customer locations during the day, and to
commute from his home to his first assignment and to his home from his last assignment
each day. [166] ¶ 7. NCR and Meadows have an agreement regarding the use of the car. Id.
10

No one employed by NCR has ever told Meadows not to take his lunch breaks, nor has
anyone ever disciplined him for taking a lunch break. [166] ¶ 32.
11

8

additional recordkeeping, and commuting home.12 [165-1] ¶¶ 10, 15; [166] ¶¶ 8, 21;
[176] ¶ 11.
Meadows never complained to or through anyone at HR Central that he had
been required to work off-the-clock. [165-2] at 28, 105:2–6. He attempted to
communicate with HR Central via a hotline many years ago about a different issue,
id. at 28–29, 105:14–106:2; but, he explained that when an NCR employee leaves a
message with HR Central, they do not usually return the employee’s call. Id. at 28,
105:19–22. None of Meadows’ managers have questioned him about his time
entries, refused to approve his time entries, or told him that he needed to change
his time entries. Id. at 25, 90:11–20. In fact, Meadows has worked overtime without
prior approval, and as far as he knows, NCR has not denied him payment for that
work. Id. at 25, 91:23–92:3. Meadows says that when he recorded his time
accurately, NCR paid him the for work that he performed before and after his shift,
as well as during his lunch break. [182] ¶ 36.
III.

Analysis
Meadows argues that he was not properly compensated for the time he spent

working before his shift, during his lunch break, and after his shift. In response,
NCR says that the activities Meadows performed before and after his shift are not

There are some inconsistencies in Meadows’s testimony about whether and how he was
instructed to underreport his time. Meadows said that the only way he was instructed to
work off-the-clock was through the requirement that he “go dispatch by 7:30,” even though
he was not compensated for time between 7:30 and 8:00 a.m. [165-2] at 24, 88:10–18. This
testimony conflicts with Meadows’s other testimony concerning instruction from his
territory managers to work off-the-clock. See [165-2] at 22, 79:20–80:11; id. at 23, 83:13–
84:8; id. at 27, 98:16–99:18. A court does not weigh credibility on a motion for summary
judgment.
12

9

compensable under the FLSA, and even if those activities were compensable as a
matter of law, NCR did not know that Meadows was performing those acts and
therefore it cannot be held liable under the FLSA.13 NCR also argues that Meadows
failed to provide an adequate explanation for the estimates of his uncompensated
work time.
The FLSA requires employers to pay overtime to non-exempt employees who
work more than forty-hours in a workweek. 29 U.S.C. § 207(a). The employee bears
the burden of proving that he performed overtime work and that he was not
compensated for that work. Kellar v. Summit Seating Inc., 664 F.3d 169, 173 (7th
Cir. 2011). The employer bears the burden of establishing that the FLSA exempts it
from liability. Id.
A. Compensability of Meadows’s Off-the-Clock Work
Not all work-related activities are compensable under the FLSA. 29 U.S.C.
§ 254; Musch v. Domtar Indus., Inc., 587 F.3d 857, 859 (7th Cir. 2009). The Portalto-Portal Act of 1947 amended the FLSA to exempt employers from liability based
on two categories of work-related activities:
(1) walking, riding, or traveling to and from the actual place of
performance of the principal activity or activities which such
employee is employed to perform, and
(2) activities which are preliminary to or postliminary to [the]
principal activity or activities,

13

Given that the IMWL parallels the FLSA, and the Illinois Administrative Code states
that FLSA regulations provide guidance in interpreting the IMWL, courts generally apply
the same analysis to both statutes. Haynes v. Tru–Green Corp., 154 Ill.App.3d 967, 977
(1987); Urnikis-Negro v. Am. Family Prop. Servs., 616 F.3d 665, 672 n.3 (7th Cir. 2010).

10

which occur either prior to the time on any particular workday
at which such employee commences, or subsequent to the time
on any particular workday at which he ceases, such principal
activity or activities.
29 U.S.C. § 254(a). In 1996, the Employee Commuting Flexibility Act added the
following language to § 254(a)(2) of the PPA:
For purposes of this subsection, the use of an employer’s vehicle
for travel by an employee and activities performed by an
employee which are incidental to the use of such vehicle for
commuting shall not be considered part of the employee’s
principal activities if the use of such vehicle for travel is within
the normal commuting area for the employer’s business or
establishment and the use of the employer’s vehicle is subject to
an agreement on the part of the employer and the employee or
representative of such employee.
H.R. Rep. 104-585, 1. The term “principal activity or activities” refers to activities
which the employee is employed to perform, and it includes all activities that are
“integral and indispensable” to those activities. 29 C.F.R. § 790.8(b); IBP, Inc. v.
Alvarez, 546 U.S. 21, 37 (2005). An activity is “integral and indispensable” if it is an
intrinsic element of the principal activity and one that the employee cannot
dispense with if he is to perform his principal activities. Integrity Staffing Sols., Inc.
v. Busk, 135 S.Ct. 513, 517 (2014). In sum, activities that are “integral and
indispensable” to an employee’s principal activities are compensable, but activities
that are “incidental” to the employee’s use of a company-owned vehicle for
commuting are not. See Chambers v. Sears Roebuck & Co., 428 Fed.App’x. 400, 414
(5th Cir. 2011). It is undisputed that Meadows’s principal activity as a CE for NCR
was to service point-of-sale machines and systems at NCR’s client sites. [182] ¶ 2.

11

What the parties dispute is whether the other activities he performed before and
after his shift were integral and indispensable to that principal activity.
NCR notes that the two elements outlined in § 254(a)(2), as amended by the
ECFA, are present here: Meadows uses a company car to travel to worksites, which
are approximately thirty minutes away from his house, and he uses the car
pursuant to an agreement with NCR; consequently any activities he performs that
are “incidental” to his use of the car for travel should not be considered as part of
his principal activities under the statute. It is NCR’s position that the pre- and postshift work that Meadows performs (reviewing his emails, work orders, and
assignments; checking in with the Operations Center; mapping his route and
establishing ETAs; loading his company car; logging mileage; and entering his
hours) are incidental to his commute and are not compensable under the FLSA. See
[144] at 17–19. Other courts have found that this type of work by field service
technicians was not compensable.14
Meadows says that NCR minimizes the importance of his pre- and post-shift
duties, which he believes are an intrinsic element of his duty to service point-of-sale
See Chambers, 428 Fed.App’x 400 (time spent by dispatch technician loading equipment
into van held non-compensable); Brand v. Comcast Corp., 135 F.Supp.3d 713 (N.D. Ill.
2015) (time cable line technicians spent logging before their shifts reviewing or obtaining
assignments for the day held non-compensable); Espenscheid v. DirectSat USA, LLC, No.
09-CV-625-BBC, 2011 WL 10069108, at *23 (W.D. Wis. Apr. 11, 2011) (“Receiving and
mapping routes and performing vehicle maintenance are tasks inherently related to
plaintiffs’ commute and not related uniquely to the activities of installing and upgrading
cable services.”); Butler v. DirectSAT, 55 F.Supp.3d 793 (D. Md. 2014) (time spent by cable
technician reading emails, mapping out directions, and prioritizing routes held noncompensable); Donatti v. Charter Commc’ns, L.L.C., 950 F.Supp.2d 1038, 1054 (W.D. Mo.
2013) (“While the technician must check his first assignment early enough to ensure he or
she has allotted sufficient commute time for the morning to his first job site, this by its very
nature is incidental to use by the technician of [the company-owned vehicle].”).
14

12

machines. To support his theory, Meadows points to five other cases. See [167] at
17, 19–20. Three of the cases pre-date the ECFA (and so shed no light on whether
work that is incidental to commuting is integral to principal activity),15 one of the
cases did not address the ECFA,16 and the other case, which did address the ECFA,
held that many tasks were not compensable because of the ECFA.17 Meadows also
says that he could not have performed his primary activity without going through
his pre- and post-shift tasks. But “[t]he fact that certain preshift activities are
necessary for employees to engage in their principal activities does not mean that
those preshift activities are ‘integral and indispensable’ to a ‘principal activity.’”
IBP, 546 U.S. at 40. It is well settled that an employer’s requirement that an
employee complete tasks does not elevate such tasks to the level of a principal
activity. Id. 40–41. And as the cases that NCR cites tend to show, Meadows’s preand post-shift activities are in kind with the types of activities that courts typically
consider to be incidental to commuting in a company car. Yet, Meadows does not
explain why such tasks that are commonly held as incidental to commuting should
be viewed differently in this case, where NCR employed Meadows to service point-

Crenshaw v. Quarles Drilling Corp., 798 F.2d 1345 (10th Cir. 1986) disapproved of by
McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988); Sec’y of Labor, U.S. Dep’t of Labor v.
E. R. Field, Inc., 495 F.2d 749 (1st Cir. 1974); D A & S Oil Well Servicing, Inc. v. Mitchell,
262 F.2d 552 (10th Cir. 1958).
15

16

Integrity, 135 S.Ct. 513.

Butler, 2014 WL 5342729. Meadows cites the Butler court holding that a genuine issue of
material fact existed as to whether the time the cable technicians spent pre-calling
customers, filling out paperwork, and attending meetings was de minimis; but, as noted
above, supra note 9, at 7, the Butler court also concluded that activities such as reading
emails, mapping out directions, and prioritizing routes were incidental to the technicians’
commute.
17

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of-sale machines. NCR hired CEs to service machines at client sites. As in other
industries that employ technicians in the field, some basic, but necessary, tasks to
get to those assignments are merely preliminary (or postliminary) to the principal
activity of field service.
The ECFA does not define which activities are “incidental” to commuting in a
company-owned vehicle because “it is not possible to define in all circumstances
what specific tasks and activities would be considered ‘incidental’ to the use of an
employer’s vehicle for commuting.” H.R. Rep. 104-585, 5. The House Report offers
some guidance, though:
Communication between the employee and employer to receive
assignments or instructions, or to transmit advice on work
progress or completion, is required in order for [company-owned
vehicle] programs to exist. Likewise, routine vehicle safety
inspections or other minor tasks have long been considered
preliminary or postliminary activities and are therefore not
compensable. Merely transporting tools or supplies should not
change the noncompensable nature of the travel.
H.R. Rep. 104-585, 5. Lawmakers understood activities like contacting the
Operations Center and establishing ETAs are an unavoidable consequence of using
a company car and they decided that such activities should be viewed in the same
way as were the minor tasks that existed before company-owned vehicle programs,
which the FLSA and its implementing regulations have long characterized as noncompensable. Considering this language and the weight of the persuasive authority
available after the enactment of the ECFA, it follows that Meadows’s pre- and postshift activities (reviewing his emails, work orders, and assignments; checking in
with the Operations Center; mapping his route and establishing ETAs; loading his
14

company car; logging mileage; and entering his hours) are incidental to his use of
the company car for commuting. These activities are routine communications tied to
receiving instructions, related to updating work progress, or transportation of
supplies—these are incidental to the act of commuting and distinct from the
principal activity of servicing point-of-sale machines.
Meadows offers two alternate theories of compensability for his off-the-clock
work. First, Meadows argues that even if the court finds that his pre- and post-shift
work is incidental to his commute, those activities nevertheless constitute the start
and end points of his workday, and thus, they are compensable under the
continuous workday doctrine. To support his argument, Meadows points to Butler,
which held that a de minimis activity can constitute a principal activity that
triggers the start of the continuous workday. 55 F.Supp.3d at 817.
The FLSA’s implementing regulations are quite clear that the start and end
of the continuous workday are only triggered when an employee engages in a
principal activity. 29 C.F.R. § 790.6(a); see also IBP, 546 U.S. at 28 (2005); Kellar,
664 F.3d at 174. And while the facts in Butler suggested that some de minimis
activities were integral to the principal activity at issue, as discussed above,
Meadows’s pre- and post-shift activities in this case do not qualify as principal
activities because they were merely incidental to his commute in a company-owned
car, and they were not integral to the work of servicing point-of-sale machines. See
also H.R. Rep. 104-585, 5 (“Activities which are merely incidental to the use of an
employer-provided vehicle for commuting [are] not considered part of the employee’s

15

principal activity or activities.”). As a result, Meadows’s pre- and post-shift
activities do not trigger the start or the end of the continuous workday, and the
continuous workday doctrine does not render Meadows’s off-the-clock work
compensable.
Second, Meadows asserts that his pre- and post-shift activities are
compensable under § 254(b), which provides that notwithstanding the exemptions
to employer liability in subsection (a), an employer will be liable under the FLSA if
it does not compensate an employee for activities for which the employer otherwise
agreed to compensate the employee through contract, custom, or practice.18
Meadows points to several pieces of evidence in the record to demonstrate that NCR
has a custom and practice of compensating CEs for the activities Meadows engages
in before and after his shift. The most concrete evidence Meadows offers is NCR’s
handbook, which expressly states that NCR will compensate CEs for taking calls,
answering emails, time reporting, parts management, mandatory training, and
other administrative duties (but not for the first thirty minutes of the CE’s morning
commute or the last thirty minutes of the CE’s evening commute). That evidence is
further supported by Meadows’s factual assertion that he has been paid by NCR in
the past for overtime, as well as the argument that NCR repeatedly makes in its
summary judgment briefs that if Meadows had recorded his off-the-clock work, NCR

The activity is only compensable under subsection (b) during the time that the contract,
custom, or practice deemed it compensable; for example, if an employer had the custom of
paying an employee for work performed before his shift, the employee would not be entitled
to compensation for performing that same activity after the end of his shift under. See 29
U.S.C. § 254(c).
18

16

would have paid Meadows for that work. Finally, Meadows cites testimony from
NCR’s Employee Relations Consultant, who explained that any work done before an
employee’s shift should be paid (excluding commute time that is thirty minutes or
less), [165-5] at 4, 8:19–9:7; id. at 18, 62:3–12, and that any work that takes an
employee longer than two or three minutes should be reported, id. at 18, 62:14–24.
In Blakes v. Illinois Bell Telephone Company, cable splicers and a class of optin plaintiffs brought an FLSA claim against their employer for its failure to pay
overtime wages; the employer moved for summary judgment on the plaintiffs’
certified claim and the court denied that motion. 77 F.Supp.3d 776 (N.D. Ill. 2015).
The employer argued, in relevant part, that the time plaintiffs spent filling out
timesheets was a non-compensable postliminary activity under the FLSA. Id. at
780. The undisputed record in Blakes showed that when cable splicers recorded the
time they spent completing timesheets during and after their shifts, the employer
paid for that time. Id. at 781. Additionally, the record showed that the employer’s
manual provided that timesheet completion was compensable work. Id. The Blakes
court reasoned: “it appears that [the employer’s] policy has been to compensate for
timesheet entry, even if done post-shift,” therefore, under § 254(b)(2), “[the
employer’s] custom and practice of paying technicians for [completing timesheets]
obligates the company to compensate for that time, even if it would otherwise be
non-compensable.” Id. at 782 (internal citations omitted).
NCR argues that the record in this case does not support a finding that a
Blakes-like “custom or practice” exists. According to NCR, Meadows has not

17

produced evidence of NCR’s “longstanding acquiescence” to pay for the specific preand post-shift activities—commuting between his home and his first and last field
assignments; reviewing, mapping, and prioritizing his assignments; and loading
and unloading his car—on which Meadows bases his claim. [180] at 12 (citing
Blakes, 77 F.Supp.3d at 781). NCR is correct insofar as its argument involves
commute time lasting thirty minutes or less. NCR’s handbook and the testimony
from NCR’s Employee Relations Consultant expressly state that NCR will not pay
CEs for the first thirty minutes of their commute in the morning and last thirty
minutes of their commute in the evening. Meadows does not submit any evidence to
controvert those facts. With respect to the other activities, though, NCR’s handbook
and the testimony from NCR’s Employee Relations Consultant explain that
Meadows’s pre- and post-shift activities should only take one to two minutes, but, in
the event that those activities take longer than one to two minutes, the CE is
expected to record that time for the sole purpose of allowing NCR to pay the CE for
that work. This evidence is enough to raise an issue of material fact about NCR’s
custom and practice of paying for pre- and post-shift activities that take a CE more
than one to two minutes to complete, such as the activities on which Meadows
predicates his claim. NCR is not entitled to summary judgment on the issue of
whether Meadows’s pre- and post-shift work was compensable.19

Meadows argues that his commute time is compensable under the IMWL even though it
is not compensable under the FLSA, as amended by the ECFA, because the Illinois
Department of Labor, which makes and revises administrative regulations, incorporated
the 1994 edition of the FLSA regulations, and that edition predates the ECFA. Meadows
notes that when the FLSA and the IMWL differ, “the stricter of the two laws shall prevail.”
[167] at 24 (quoting 56 Ill. Admin. Code § 210.100) (citing Driver v. AppleIllinois, LLC, 917
19

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B. NCR’s Knowledge
Knowledge is an element of an FLSA claim. Kellar, 664 F.3d at 177. NCR
argues that it is entitled to summary judgment because Meadows cannot show that
NCR knew about Meadows’s off-the-clock work. Meadows worked in the field on his
own; Meadows failed to accurately report the hours he worked; no one employed by
NCR changed Meadows’s time records; no one employed by NCR reprimanded
Meadows for the hours he submitted; Meadows never complained to or through HR
Central about his off-the-clock work; and NCR paid Meadows in the past for his
overtime work whenever Meadows recorded those hours, even when he did not seek
prior approval to work those hours as required by NCR policy. In essence, NCR
argues that it had robust timekeeping policies that prohibited off-the-clock work
and inaccurate time reporting, and an employee’s unilateral decision to work before
his shift began, through his lunch period, after his shift ended, and to fail to report
that time, is not something NCR should be aware of, nor is it something that should
make NCR liable under the FLSA.
The FLSA seeks to prevent employers from evading liability by burying their
heads in the sand when their employees are performing overtime work. Allen v. City
F.Supp.2d 793, 799 (N.D. Ill. 2013)). Since the ECFA applies to the FLSA, but not to the
IMWL, Meadows reasons, the IMWL is stricter than the FLSA and it should govern the
compensability of his commute-time claim. But, Meadows does not cite any case law to
support his interpretation of the interplay between these statutes, and I find his reasoning
to be inconsistent with broader precedent. Illinois courts “have recognized that in light of
their substantial similarities, provisions of the FLSA and interpretations of that legislation
can be considered in applying the [IMWL].” Kerbes v. Raceway Assocs., LLC, 2011 IL App
(1st) 110318, ¶ 25. It follows that courts may refer to the ECFA, which amends the FLSA
through the PPA, in interpreting the IMWL. As such, the compensability of Meadows’s preand post-shift activities, including his commute time, under Illinois and federal law
depends on the same analysis.

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of Chicago, 865 F.3d 936, 938 (7th Cir. 2017) (citing 29 U.S.C. § 203(g)). In light of
this, the statute defines the verb “employ” as “to suffer or permit to work,” 29 U.S.C.
§ 203(g), and its implementing regulations make clear that liability extends to an
employer when the employer knew or had reason to believe that its employees were
performing overtime work. 29 C.F.R. §§ 785.11–785.13. That is true even if the
employer did not request that the employee perform the work, id. § 785.11; even if
the employee performs the work away from the worksite or at home, id. § 785.12;
and even if the employer had promulgated a rule against such work, id. § 785.13.
An employer can only escape liability by showing that in addition to not having
actual knowledge of the work, it did not have constructive knowledge because
reasonable diligence would not have helped the employer learn of the work. Allen,
865 F.3d at 938. An employer cannot be held liable under the FLSA for work that it
did not know about and that it had “no reason to know about.” Kellar, 664 F.3d at
177.
Given Meadows’s testimony that NCR’s written policies prohibiting off-theclock work were being violated in practice, that territory managers wanted CEs to
work off-the-clock, and that each of Meadows’s managers have instructed him to
work off-the-clock (e.g. to enter 8:00 a.m. as his start time in NCR’s timekeeping
system even if he had begun working before then), there is a genuine issue of
material fact as to NCR’s knowledge. See [165-2] at 22, 79:20–80:11; id. at 23,
83:13–84:8; id. at 27, 98:16–99:18. That NCR had clear written policies prohibiting
off-the-clock work and inaccurate time recording is no defense. See Allen, 865 F.3d

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at 939 (“an employer’s formal policy or process for reporting overtime will not
protect the employer if the employer prevents or discourages accurate reporting in
practice”). Similarly, evidence that NCR has paid Meadows for overtime in the past
does not negate the fact that Meadows was encouraged to and did underreport his
hours on other occasions. See id. (“the employees’ jobs demanded ‘long and irregular
hours,’ but their supervisors ‘insisted that all work be completed within certain
defined time limits.’ The employer’s practices effectively ‘squelched truthful
responses’ in overtime reports”) (citing Brennan v. Gen. Motors Acceptance Corp.,
482 F.2d 825, 827–28 (5th Cir. 1973)). Direction or pressure from a supervisor is
sufficient here to raise an issue of material fact about NCR’s constructive knowledge
of Meadows’s off-the-clock work.
NCR’s remaining arguments—that it did not have knowledge of Meadows’s
off-the-clock work due to the fact that Meadows worked in the field on his own and
unilaterally decided to perform work off-the-clock—need not be addressed since
Meadows has sufficiently raised an issue of material fact through other evidence as
to whether NCR knew that he was working off-the-clock; nevertheless, those
arguments also fail. The facts of this case are distinguishable from those that NCR
cited where the employees’ actions or other circumstances prevented the employer
from learning of the overtime work. See, e.g., Gaines v. K-Five Const. Corp., 742
F.3d 256, 271 (7th Cir. 2014) (“In this case, Gaines presents no evidence that his
arriving at work early should have raised a flag that he was working unauthorized
overtime.”). As Meadows notes, NCR should have learned about his off-the-clock

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work through reasonable diligence because NCR has electronic records of the emails
Meadows sends, the changes he made to his status throughout the workday, the
updates he made to work orders and assignments, as well as GPS records from his
company car, all of which would have shown when and what work Meadows
performed. NCR argues that it does not have a “forensic duty” to uncover Meadows’s
unrecorded hours, and that its ability to access those electronic records does not
establish its constructive knowledge because the standard is what NCR should have
known, not what it could have known. I agree with NCR’s articulation of the
standard, but I am persuaded by Meadows’s argument that NCR’s access to these
electronic records is evidence that NCR should have acquired the information
through a reasonably diligent search; they do not represent merely what NCR could
have known. NCR is not entitled to summary judgment on the issue of knowledge.
C.

Damages

NCR argues that Meadows lacks specificity regarding his damages for his
uncompensated work, and as a result, NCR is entitled to judgment as a matter of
law. While it is true that an employee who brings an action for unpaid wages “has
the burden of proving that he performed work for which he was not properly
compensated,” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–87 (1946);
Kellar, 664 F. 3d at 173, 177, the standard by which the employee must make that
showing is lower when the employer failed to keep accurate records.
The FLSA requires employers to “make, keep, and preserve” its employees’
records concerning “wages, hours, and other conditions and practices of
employment.” 29 U.S.C. § 211(c). If an employer’s inadequate records cause the
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plaintiff to have difficulty proving his damages, the plaintiff can meet his burden by
showing the “amount and extent of [his unpaid] work as a matter of just and
reasonable inference.” See Anderson, 328 U.S. at 687; see also Brown v. Family
Dollar Stores of IN, LP, 534 F.3d 593, 595 (7th Cir. 2008) (“To place the burden on
the employee of proving damages with specificity would defeat the purpose of the
FLSA where the employer’s own actions in keeping inadequate or inaccurate
records had made the best evidence of such damages unavailable.”). If the plaintiff
meets that low burden, then the burden shifts to the employer to produce evidence
of the precise amount of work the employee performed or evidence to negate the
reasonableness of the inferences that can be drawn from the employee’s evidence.
Anderson, 328 U.S. at 687–88. If the employer fails to meet that burden, a court
may award damages even though they are approximations. Id. at 688.
Meadows’s evidence that each of his managers instructed him to perform offthe-clock work in direct contravention of NCR’s policies is sufficient to raise a
genuine issue of material fact about the accuracy of NCR’s records. In response to
the shifted burden, NCR does not provide any evidence about the amount of work
Meadows performed, even though, according to Meadows, NCR could glean such
information by cross-referencing Meadows’s time entries, status updates, emails,
and GPS data.20 Instead, NCR attempts to discredit Meadows’s estimates of his
NCR argues that it was Meadows’s obligation to produce such evidence and that he
cannot “evade summary judgment now by promising to come up with evidence later.” [180]
at 20. This is incorrect. Since NCR moved for summary judgment, Meadows’s only
obligation is to raise an issue of material fact as to whether he can prove his damages with
the requisite specificity—a lower burden under the Anderson burden shifting rule because
here, it can be inferred at this stage that NCR failed to keep accurate records.
20

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unpaid work by arguing that Meadows cannot rely on “self-serving, speculative
assertions allegedly based on roughly two weeks’ worth of self-reporting over an
eight year period.” [144] at 24. While Meadows may not speculate about the amount
of his damages, he may rely on his recollection. See Brand, 135 F.Supp.3d at 742
(citing Blakes v. Ill. Bell Tel. Co., 75 F.Supp.3d 792, 814 (N.D. Ill. 2014)). Given that
Meadows’s routine was fairly consistent from day to day, a reasonable jury could
find Meadows’s testimony about when he clocked in and out, and when he worked
off-the-clock credible. NCR is not entitled to summary judgment on the issue of
damages.
IV.

Conclusion
Defendant’s motion for summary judgment, [142], is denied.

ENTER:
___________________________
Manish S. Shah
United States District Judge

Date: November 9, 2017

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