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Date: 05-29-2019

Case Style:

Brian A. Weil and Melissa D. Fulk v. Metal Technologies, Inc.

Case Number: 18-2556 & 18-2440

Judge: Barrett

Court: United States Court of Appeals for the Southern District of Indiana (Vigo County)

Plaintiff's Attorney: Robert F. Hunt, Robert Peter Kondras, Jr., Jacob H. Miller

Defendant's Attorney: Brian D. Burbrink, Michael W. Padgett, Melissa K. Taft


Brian Weil and Melissa Fulk filed
class and collective actions against Metal Technologies, alleging
wage violations under the Fair Labor Standards Act and
Indiana wage laws. They had two basic complaints. First, they
2 Nos. 18-2556 & 18-2440
argued that Metal Technologies unlawfully paid employees
only for the hours that they were scheduled to work even
when employees’ timestamps showed that they were clocked
in for longer than that. The district court conditionally certified—
but then later decertified—those claims. After decertification,
the plaintiffs proceeded in their individual capacities
and secured a very modest damages award. Second, the plaintiffs
contended that Metal Technologies withheld wages from
employees’ paychecks for uniform rentals, even though Indiana
law authorized withholding only for uniform purchases.
The district court entered judgment for the class on the wagededuction
claims, which had been split into two time periods,
and they won a much larger damages award.
Both sides appealed. The plaintiffs argue that the district
court should not have decertified the time-rounding claims,
and Metal Technologies insists that Indiana law permitted it
to deduct wages to cover uniform rentals. Each side thinks
that the district court should have awarded it costs. And while
the plaintiffs think that they have recovered too little in attorneys’
fees, the defendants say that the plaintiffs have recovered
too much.
If the law remained as it stood on the day that the case was
argued, we would affirm the district court across the board.
After argument, however, the Indiana legislature introduced
a wrinkle: it amended its wage-deduction law to authorize
withholding for uniform rentals, and it made that amendment
retroactive. Given this turn of events, we affirm the district
court’s decertification order but vacate the judgment and remand
the case for the district court to reconsider the wagededuction
claim in light of the new law. That will likely also
Nos. 18-2556 & 18-2440 3
require the district court to recalculate attorneys’ fees and
Metal Technologies is a manufacturer of automobile parts
in Bloomfield, Indiana. It employs around 500 workers. These
employees work one of three shifts throughout the day, which
overlap by 30 minutes to ensure time to clean up and exchange
information with the next shift. Metal Technologies
keeps track of employees’ time with an electronic time clock.
It calculates pay based on scheduled shifts rather than timeclock
punches—so employees are typically paid for 40 hours
per week, and if they need to go over, they must fill out an
overtime authorization form. Metal Technologies also deducts
wages from employees who elect to rent work uniforms.
Two of Metal Technologies’s former employees, Brian
Weil and Melissa Fulk, filed class and collective actions and
individual claims alleging that Metal Technologies committed
wage violations under the Fair Labor Standards Act of
1938 (FLSA) and Indiana wage laws. See FED. R. CIV. P. 23; 29
U.S.C. § 216(b). They brought two categories of claims: timerounding
claims and wage-deduction claims. The timerounding
claims asserted that Metal Technologies unlawfully
paid employees only for the hours that they were scheduled
to work even when their timestamps showed that they were
clocked in for longer than that. The wage-deduction claims
focused on Metal Technologies’s practice of taking payment
for work uniforms out of employees’ paychecks. These latter
claims were broken down into two time periods: January 20,
2013 to April 10, 2016, when the original wage-deduction
4 Nos. 18-2556 & 18-2440
form was used, and after April 10, 2016, when Metal Technologies
began using a new form.
The plaintiffs sought Rule 23 and FLSA certification on
both the time-rounding claims and the wage-deduction
claims.1 The district court conditionally granted Rule 23 certification
on both claims, but it granted FLSA certification only
on the time-rounding claim.
The plaintiffs later moved for summary judgment on their
certified claims. Metal Technologies opposed that motion and
moved to decertify the time-rounding claims under both the
FLSA and Rule 23. Yet it conceded liability on the wage-deduction
claim—although only under the original wage-deduction
form. See IND. CODE § 22-2-6-2(a) (the form must state
that the deduction can be revoked at any time upon written
notice to the employer).
The district court granted Metal Technologies’s motion to
decertify the time-rounding claims and denied as moot the
plaintiffs’ motion for summary judgment on those claims. In
doing so, the court relied on 29 C.F.R. § 785.48(a), which specifies
that employers do not have to compensate employees for
minor pre- and post-shift time-clock punches (for example,
clocking in ten minutes before a shift starts) as long as they
aren’t working during that time. In other words, an employee’s
time stamp is not a per se record of work. And because
the plaintiffs had provided no evidence that Metal Technologies’s
employees were actually working beyond their
1 Although class actions are brought under Rule 23 and collective actions
under the FLSA, they are typically analyzed together—the primary
difference being that collective actions require would-be members to opt
in while class actions require them to opt out. See Herrington v. Waterstone
Mortg. Corp., 907 F.3d 502, 507 n.4 (7th Cir. 2018).
Nos. 18-2556 & 18-2440 5
shifts, the court concluded that they could not prove a theory
of liability common to the class. The court permitted the plaintiffs
to proceed with only their individual claims for unpaid
On the wage-deduction claim, the district court split its decision.
It granted the plaintiffs’ summary-judgment motion
with respect to the original wage-deduction form—the issue
on which Metal Technologies had conceded liability. But it denied
summary judgment with respect to the amended form.
Weil and Fulk proceeded to a one-day bench trial on their
individual claims for unpaid wages, the damages calculation
pertaining to the original wage-deduction form, and the class
claim pertaining to the amended wage-deduction form. The
plaintiffs recovered very little on their individual claims because
the court found that there were only a handful of occasions
on which Weil and Funk were clocked in and working
but not paid—once in Weil’s case and four times in Fulk’s.
Their greatest success came with the wage-deduction claims.
The district court determined that trebled damages for the
class under the original wage-deduction form totaled
$93,152.58. And it sided with the class on the amended wagededuction
form, reasoning that Indiana law permitted wage
deductions only for purchasing, not renting, uniforms. The
court awarded an additional $8,102.04 for that claim.
Following the trial, the district court awarded $99,229.58
in attorneys’ fees for the wage-deduction claims and
$16,869.03 for the time-rounding claims. The district court denied
both parties’ requests for costs.
Both sides appealed. Metal Technologies insists that the
district court erred in finding that it had unlawfully deducted
6 Nos. 18-2556 & 18-2440
uniform rentals. The plaintiffs argue that the district court
erred in decertifying the time-rounding claims. And both parties
appeal both attorneys’ fees and costs.
After we heard oral argument, the Indiana state legislature
passed a law permitting an employer to deduct employee
wages for renting uniforms. See IND. CODE § 22-2-6-2(b)(14).
Metal Technologies filed a notice under Federal Rule of Appellate
Procedure 28(j) arguing that we must reverse the district
court’s decision that it unlawfully deducted uniform
rental costs under the amended wage deduction form.
The new statute expressly states that it applies retroactively.
IND. CODE 22-2-6-3(b); see State v. Pelley, 828 N.E.2d 915,
919 (Ind. 2005) (“Statutes are to be given prospective effect
only, unless the legislature unequivocally and unambiguously
intended retrospective effect as well.” (emphasis added)).
There is no general prohibition on applying retroactive laws
to cases pending on appeal. See Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211, 226 (1995) (“When a new law makes clear that it
is retroactive, an appellate court must apply that law in reviewing
judgments still on appeal that were rendered before
the law was enacted, and must alter the outcome accordingly.”).
On the contrary, courts generally must honor the legislature’s
choice to make a law retroactive. See Bourbon Mini–
Mart, Inc. v. Gast Fuel & Servs., Inc., 783 N.E.2d 253, 260 (Ind.
2003) (“Ultimately … whether or not a statute applies retroactively
depends on the Legislature’s intent.”); see also Landgraf
v. USI Film Products, 511 U.S. 244, 267–68 (1994) (“Retroactivity
provisions often serve entirely benign and legitimate purposes,
whether to respond to emergencies, to correct misNos.
18-2556 & 18-2440 7
takes, to prevent circumvention of a new statute in the interval
immediately preceding its passage, or simply to give comprehensive
effect to a new law….”). The only exception is if
applying the law retroactively would violate a vested right or
constitutional guarantee. Bourbon, 783 N.E.2d at 260. Thus,
unless the plaintiffs can show that applying Indiana’s new
statute deprives them of a vested right or constitutional guarantee,
the new statute controls.2
It seems unlikely that the plaintiffs could successfully
make that showing, but they should have a chance to try. We
therefore vacate the judgment and remand the case so that the
district court can consider whether the new law applies to
Weil and Fulk’s wage-deduction claims. If it does, the district
court will also have to revisit the attorneys’ fees and costs that
it awarded the plaintiffs on those claims.3
Before reaching the merits of the plaintiffs’ decertification
arguments, we must first address Metal Technologies’s contention
that this issue is moot because we can no longer grant
2 As to the plaintiffs’ argument that Metal Technologies still violated
Indiana law because it did not sign the wage-deduction form, the district
court correctly concluded that Metal Technologies agreed to the wage assignment
in writing—which is all that the statute required. See IND. CODE
§ 22-2-6-2(a)(1).
3 On appeal, the plaintiffs argue that they were entitled to costs under
Indiana law. See IND. CODE § 22-2-5-2. But we note that because federal,
not state, law governs an award of costs, the district court does not have
to consider costs under this provision. See Abrams v. Lightolier Inc., 50 F.3d
1204, 1223 (3d Cir. 1995) (“[W]here there is a valid applicable Federal Rule
of Civil Procedure, it is to be applied by a federal court even where the
plaintiff’s claim is based on state law.… Rule 54(d)(1) will thus trump a
state cost shifting provision with which it conflicts.”).
8 Nos. 18-2556 & 18-2440
the plaintiffs relief. Metal Technologies argues that neither
Weil nor Fulk has a concrete interest in certification because
they went to trial on their individual time-rounding claims
and lost. But we have held that the possibility of an incentive
award—which Weil and Fulk could receive here—is enough
of an interest to keep the claim justiciable. See Espenscheid v.
DirectSat USA, LLC, 688 F.3d 872, 875 (7th Cir. 2012).4 We
therefore have jurisdiction to consider the plaintiffs’ argument,
reviewing the district court’s certification order for
abuse of discretion and its legal determinations supporting
the decision de novo. Philips v. Sheriff of Cook Cty., 828 F.3d
541, 549 (7th Cir. 2016).
The plaintiffs make several arguments as to why we
should reverse the district court’s decision to decertify the
time-rounding claims under Rule 23 and the FLSA. None succeeds.
First, the plaintiffs argue that because the district court initially
certified the claims, it was bound by that decision unless
Metal Technologies put forth new evidence. But neither
Rule 23 nor the FLSA includes such a requirement. Rule 23
grants courts the discretion to reconsider certification at any
point before final judgment, see FED. R. CIV. P. 23(c)(1)(C), and
it says nothing about limiting that discretion to when new evidence
is raised. Collective actions under the FLSA likewise
permit courts to reconsider certification after discovery has
been completed. See Espenscheid, 688 F.3d at 877. And this
makes sense in light of our repeated assertions that district
4 We note, though, that Chief Justice Roberts disagrees. See Campbell-
Ewald Co. v. Gomez, 136 S. Ct. 663, 679 n.1 (2016) (Roberts, C.J., dissenting)
(asserting that “obtaining a class incentive award does not create Article
III standing”).
Nos. 18-2556 & 18-2440 9
courts have wide discretion in managing class and collective
actions. See, e.g., Alvarez v. City of Chicago, 605 F.3d 445, 449
(7th Cir. 2010); Chavez v. Illinois State Police, 251 F.3d 612, 629
(7th Cir. 2001). The district court did not err by reconsidering
its earlier certification decisions.
Second, the plaintiffs argue that the district court was
wrong to conclude that an employee’s time stamp is not a per
se record of work. The plaintiffs claim that because the time
stamps of some employees show more than 40 hours of time
in weeks for which they were compensated for only 40 hours,
Metal Technologies necessarily underpaid those employees.
The district court disagreed, relying on the following FLSA
regulation to untangle the issue:
(a) Differences between clock records and actual
hours worked. Time clocks are not required. In
those cases where time clocks are used, employees
who voluntarily come in before their regular
starting time or remain after their closing time, do
not have to be paid for such periods provided, of
course, that they do not engage in any work. Their
early or late clock punching may be disregarded.
29 C.F.R. § 785.48(a) (emphasis added). As we have noted before,
this regulation means that “employees who clock in
early do not have to be paid so long as they are not working.”
See Kellar v. Summit Seating, Inc., 664 F.3d 169, 177 (7th Cir.
2011). Put another way, an employee can clock in, grab a coffee,
read the newspaper, and then start working once his
scheduled shift begins—and an employer wouldn’t have to
compensate him for that time. Because the plaintiffs failed to
provide evidence that employees were actually working without
compensation—not simply that they were clocked in for
10 Nos. 18-2556 & 18-2440
over 40 hours—plaintiffs lack, as the district court pointed
out, “both a theory of liability and proof of any injury.”5 So
decertification of both the class and collective claims was appropriate.
See FED. R. CIV. P. 23(b); 29 U.S.C. § 216(b).6
Finally, the plaintiffs suggest that the Metal Technologies
employee manual says that compensation will be provided
based on clock time, and so they seek to hold Metal Technologies
liable for violating that guarantee. But the manual does
not say that employees will be compensated for every minute
that they are clocked in even if they aren’t working. In fact, it
says the opposite: employees will be compensated only for actual
time worked. So any argument that Metal Technologies
violated its own manual fails as well.
For all these reasons, the district court did not abuse its
discretion in decertifying the claims.

* * *

5 For the same reason, Weil and Fulk had very little success on their
individual claims. They could not recover simply because of the discrepancy
between their scheduled hours and the time clock; they could recover
only for the handful of occasions on which they could prove that they
were clocked in and actually working. That happened on only one occasion
for Weil and on four for Fulk.
6 The plaintiffs also say that Metal Technologies failed to keep accurate
records. That argument fails because the plaintiffs haven’t introduced
sufficient evidence to support it. See Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680, 686–87 (1946) (“An employee who brings suit … for unpaid
minimum wages or unpaid overtime compensation, together with liquidated
damages, has the burden of proving that he performed work for
which he was not properly compensated.”).

Outcome: We AFFIRM in part, VACATE in part, and REMAND to
the district court for proceedings consistent with this opinion.

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