DuPont headquarters. Photo: Littleinfo via Wikimedia Commons

Philadelphia attorneys for a proposed class of DuPont workers last month notched a win before the U.S. Supreme Court when the justices denied its petition for review of a Third Circuit ruling that the Wilmington, Delaware-based chemical giant was required to pay employees overtime for time spent putting on and taking off work gear.

The decision rejected DuPont’s argument that the Fair Labor Standards Act allowed the company to avoid paying overtime by taking a “credit” for break-time pay and then using it to offset its obligations to compensate its employees for off-the-clock work.

And it capped more than a year of waiting for three employees at DuPont’s Towanda, Pennsylvania, manufacturing plant and Thomas More Marrone, of MoreMarrone, who argued in court papers that the practice represented “precisely the type of ‘creative bookkeeping’ … the FLSA sought to eradicate.”

DuPont petitioned the Supreme Court for cert in February 2017, after a unanimous panel of the U.S. Court of Appeals for the Third Circuit ruled that DuPont’s policy violated the FLSA by denying time-and-a-half pay to Bobbi-Jo Smiley, Amber Blow and Kelsey Turner, who work four 12-hour shifts per week.

Briefing before the appeals court included arguments from the Department of Labor, which agreed with the plaintiffs that allowing employers to credit the regular rate of pay against overtime would inevitably shortchange workers.

DuPont then seized on the Labor Department’s involvement in the case, saying in its Supreme Court petition that the appeals court gave the agency too much deference in accepting an interpretation of a statute that was presented for the first time in litigation.

Marrone argued that DuPont was using an “invented issue” that was not raised in the district court to “tee up” a losing case for Supreme Court review.

“Nothing would have changed in this case,” he said. “The reason it’s a non-issue is because, by the very language of the Third Circuit’s opinion, the decision was based on existing Third Circuit precedent and the language of the FLSA.”

“It’s not important unless it’s a linchpin to success or defeat,” he said.

Still, the case languished on the Supreme Court’s docket before the justices finally addressed it on the last day of the term. The order came over the objection of Justice Neil Gorsuch, who cited a circuit split over whether courts should defer to statutory interpretations that federal agencies lay out for the first time in court.

“Respectfully, I believe this circuit split and these questions warrant this court’s attention,” he said in a statement, joined by Chief Justice John Roberts and Clarence Thomas. “If not in this case, then respectfully soon.”

The case has been remanded to the U.S. District Court for the Middle District of Pennsylvania for further proceedings, including a calculation of damages, Marrone said.

“This is a long-awaited victory for hourly workers” and Smiley, he said. “She demonstrates that a strong woman from a small Pennsylvania town can take on a corporate giant and win.”

A DuPont spokesman said the company was “disappointed in the court’s decision to deny our petition for certiorari. The case will continue to proceed and we will vigorously defend our position in this matter.”

Patricia Pierce of Greenblatt, Pierce, Funt & Flores is acting as co-counsel for the plaintiffs.

DuPont is represented by David S. Fryman, Andrew I. Herman and Amy L. Bashore of Ballard Spahr and A. Patricia Diulus-Myers and Eric R. Magnus of Jackson Lewis.

The case, on appeal, was captioned DuPont v. Smiley.