The parties assumed that Jong must show that Kaiser knew or should have known that he was working off the clock, and the Court found "no reason to question this basic premise." Slip op. at 4-5.
Jong raised a triable issue as to whether he worked off-the-clock hours, but he failed to raise a triable issue as to whether Kaiser knew or should have known of that work. Declarations and deposition testimony of other OPMs that they worked off-the-clock hours did not raise such a triable issue. Slip op. at 5-10.
The Court noted in particular that:
Jong knew of Kaiser’s written policy that OPMs should be clocked in whenever they were working;
Kaiser always paid him for time he recorded on Kaiser’s recording system, including overtime hours;
Kaiser instructed him that he was eligible to work and be paid for overtime hours;
There was never an occasion when he requested approval to work overtime that was denied and there were occasions when he worked and was paid overtime even though he did not seek pre-approval;
He was not told by any of his managers or supervisors or any other Kaiser management personnel that he should perform work before he clocked in or after he clocked out or otherwise work off-the-clock;
And he signed the attestation form and understood it was an attestation that he would not work off-the clock.Slip op. at 7-8.
Jong v. Kaiser is available here.