The 6th Circuit found that the nurse could not maintain a collective action because he failed to present substantial evidence that any other would-be or opt-in plaintiffs were similarly situated. While this is good news for employers, it doesn't completely eliminate an employee's ability to prevail in an auto-deduct collective action filed under the FLSA. An employee may still pursue a collective action if the employee can show that other employees are “similarly situated.” This is often determined by examining whether or not there are similarities in job duties, pay, employment settings and individual violations among the collective employee plaintiffs.
Q: For employers that have auto-deduct policies in place, what are some best practices for ensuring they don't violate the Fair Labor Standards Act?
A: Employers utilizing auto-deduct programs should scrutinize their policies to ensure that all time worked by employees during breaks is compensated, and employees remain fully trained to use any system in place to override the automatic deductions. Employers should consistently instruct employees on any policies that deal directly or indirectly with their obligation to report time worked during breaks. In addition, employers should document and maintain good records of this training in each employee's personnel file.
PAULA BURKES, BUSINESS WRITER