Employment: Parties dispute whether rounding policy resulted in loss of compensable time

Where there were disputed issues of material fact over whether a substantial portion of the time lost under a company’s rounding policy is actually compensable time, the employees’ motion for summary judgment was denied.

Background

In this hybrid collective and class action involving alleged systematic efforts to underpay hourly employees of the defendants, the defendants have filed motions for class decertification and summary judgment. The plaintiffs have filed motions for partial summary judgment, to exclude expert testimony and for sanctions.

FLSA decertification

Jennmar contends that the plaintiffs cannot identify a systematic, enterprise- wide policy and practice implemented by Jennmar that required the plaintiffs to perform essential job duties before or after their scheduled shift times. The court disagrees.

Plaintiffs have identified key facts to demonstrate a similar employment setting, including: (1) Jennmar has a written timekeeping policy, despite their assertion that they do not; (2) the timekeeping and compensation policies for hourly work, including the rounding policy, are applicable to all hourly employees and (3) the plaintiffs could not perform all demands and duties within their assigned shifts. I also find that fairness and procedural concerns weigh in favor of certification.

Rule 23 decertification

Jennmar now points to a Fourth Circuit opinion issued after this court’s grant of class certification — Stafford v. Bojangles’ Restaurants, Inc., 123 F.4th 671 (4th Cir. 2024). The Fourth Circuit held that the district court erred in defining the class so broadly, in that “[n]o reference [wa]s made to the type of off-the-clock work class members performed or whether a class member even performed off-the-clock work at all.” For the reasons discussed above, I find the present facts to be sufficiently distinguishable. I will deny the motion to decertify as to the Rule 23 class action.

Expert

The plaintiffs contend that the methodology employed by Jennmar’s expert, Richard A. Goldberg, is not reliable. Specifically, the plaintiffs argue that Goldberg does not address (1) how unpaid hours worked should be calculated; (2) how unpaid wages should not be calculated and (3) the effects of Jennmar’s rounding practices. Further, the plaintiffs contend that Goldberg’s testimony would not assist the factfinder to understand the evidence, is irrelevant and is not rooted in personal knowledge. I find no merit in the plaintiffs’ assertions.

Sanctions

The plaintiffs also seek sanctions against Jennmar. The alleged misconduct consisted of Jennmar’s filing of four declarations from represented class members and 13 from witnesses who Jennmar failed to disclose during discovery. Jennmar agreed to (1) withdraw the 17 declarations at issue; (2) not use the declarations for any purpose in this case, including impeachment purposes and (3) attempt no further ex parte communication with class members and/or the plaintiffs regarding the case by Jennmar, their counsel and their agents.

Given FordHarrison’s acknowledgment of Jennmar’s misconduct and stipulation to withdrawing the declarations, the plaintiffs’ request that this court impose more robust sanctions is unpersuasive. I find disqualifying FordHarrison for negligence as too extreme a remedy that would prejudice Jennmar. However Jennmar must pay reasonable attorney’s fees and costs for its past services in dealing with the declarations.

Jennmar arguments

Jennmar contends that this court lacks personal jurisdiction over certain out-of-state defendants. However, if the defendant entities operated as a single enterprise, jurisdiction would be appropriate. I will deny summary judgment as to the out-of-state defendants.

Jennmar argues that there is no evidence of a uniform and unlawful policy employed by multiple supervisors across their facilities. I find that there are genuine disputes of material fact as they relate to the existence of a practice requiring off-the-clock work.

Rounding policy

The FLSA permits employers to utilize rounding practices so long as “employees are fully compensated for all the time they actually work.” Compensable time is the time between the employee’s first and last principal activities. I find that the plaintiffs have not successfully demonstrated that all or a substantial portion of the time lost under the rounding policy is actually compensable time, and that a genuine issue of fact exists as to such. Accordingly, their cross-motion for summary judgment is denied as it relates to the rounding policy.

Disputed issues

The plaintiffs assert that Jennmar willfully violated the FLSA because their Employee Handbook explicitly requires that workers be compensated for overtime. The plaintiffs are focused on the wrong inquiry. The issue is whether the additional time the employees worked constituted compensable time under the FLSA. Accordingly, summary judgment is denied.

I will deny summary judgment as to the joint liability claim, the breach of contract and quantum meruit claims, the good faith defense to liquidated damages assertion and whether Jennmar violated the VWPA, and if so, whether that violation was knowing.

So ordered.

Stacy v. Jennmar Corp. of Va. Inc., Case No. 1:21-cv-00015, Sept. 30, 2025. WDVA at Abingdon (Jones). VLW 025-3-410. 34 pp.