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14-P-1304                                                Appeals Court

       DONNA VITALI     vs.   REIT MANAGEMENT & RESEARCH, LLC.


                              No. 14-P-1304.

            Suffolk.      May 8, 2015. - August 21, 2015.

             Present:    Green, Milkey, & Maldonado, JJ.


Labor, Overtime compensation, Wages.      Practice, Civil, Summary
     judgment.



     Civil action commenced in the Superior Court Department on
February 13, 2012.

     The case was heard by Mitchell H. Kaplan, J., on a motion
for summary judgment.


     Stephen S. Churchill for the plaintiff.
     Jennifer B. Furey (Paul F. Beckwith with her) for the
defendant.


     MILKEY, J.   The plaintiff, Donna Vitali, worked as a

bookkeeper for the defendant, Reit Management and Research, LLC

(company), a property management firm.         She was paid by the hour

and, pursuant to both statute and company policy, she was to be

paid overtime at one and one-half times the regular rate for any
                                                                        2


work done in excess of forty hours in a given week.      See G. L.

c. 151, § 1A.    She brought the current action alleging that she

accrued overtime that was not credited by the system the company

had in place to keep track of employee hours.      In a detailed and

thoughtful decision, a Superior Court judge allowed the

company's motion for summary judgment.     Because we conclude that

there are material facts in dispute, we reverse.

       Standard of review.   Our review of the allowance of a

motion for summary judgment is de novo.     Deutsche Bank Natl.

Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 252-253

(2015).    Disputed facts are to be read in the light most

favorable to the nonmoving party, in this case, Vitali.        Id. at

250.    "The moving party must affirmatively show that there is no

real issue of fact, all doubts being resolved against the party

moving for summary judgment."     Shawmut Worcester County Bank,

N.A. v. Miller, 398 Mass. 273, 281 (1986) (quotation omitted).

Evidence in the record is considered together with all

reasonable inferences to be drawn from the record.      Godfrey v.

Globe Newspaper Co., 457 Mass. 113, 119 (2010).

       Background.   The nature of the dispute.   Vitali was

scheduled to work from nine to five, five days per week, with a

paid one-hour lunch break.     Both sides agree that lunch breaks

do not count toward overtime.     They also agree that if an

employee has to work during what otherwise would be a lunch
                                                                     3


break, the employee gets no extra pay for doing so (since she or

he is already being paid for that time).    However, such worked

lunch time can be counted toward the forty-hour overtime

threshold, thus potentially indirectly increasing the employee's

overall compensation.    Vitali claims that she regularly worked

during her lunch breaks even though that time was not recorded

in the particular timekeeping system that the company used

during the relevant period.    She brought this action pursuant to

G. L. c. 151, § 1A, purportedly as a class action, seeking the

extra compensation that would be due if she and others similarly

situated were credited for such lunch time work. 1

     The company's timekeeping system.    On February 15, 2010,

the company implemented a new electronic timekeeping system. 2

Under this system, which was known as Kronos, hourly employees

were required to use their computer terminals to "punch in" when

they first arrived on a given day, and to "punch out" when they

left.    At the center of this case is how the company, relying on

Kronos, accounted for employee lunch breaks.    As the company

acknowledged, when Kronos was first implemented, it did not have

     1
       The complaint also alleged contract and quantum meruit
claims, but Vitali -- who was an at-will employee -- abandoned
such claims before the summary judgment motion was resolved.
     2
       Prior to that date, the company used a paper-based system.
Vitali initially asserted that she was shortchanged overtime
under that system as well, but she has since abandoned such
claims because of the applicable statute of limitations.
                                                                    4


the "functionality" to allow employees to punch out for lunch

and to punch back in when they returned.   The absence of that

feature created a potential discrepancy between the hours that

an employee "clocked" using Kronos and the time they actually

worked.   Thus, for example, if Vitali confined her work to the

scheduled nine-to-five work day and took her allotted one-hour

paid lunch breaks, she would clock forty hours even though she

actually worked only thirty-five hours.    As a result, if Vitali

performed work outside of the ordinary nine-to-five work day,

the time automatically would be captured as clocked hours, but

any time she spent working during lunch would not similarly be

reflected.   Thus, regardless of whether Vitali worked through

all (or part) of lunch or took her full allotted lunch break,

her hours clocked in Kronos would be the same.

     The company's practice in calculating overtime.   In light

of the discrepancy between hours worked and hours clocked, the

company adopted a practice of paying overtime to hourly

employees only once they clocked forty-five hours for a given

week unless the employees separately reported having to work in

lieu of lunch.   In other words, except to the extent that hourly

employees separately recorded their lunch time work, the company

assumed that they took their full one-hour lunch breaks.

According to Melissa Juppe, the company's payroll supervisor,

the proper protocol for recording lunch time work in Kronos was
                                                                     5


for employees to access a "drop down" menu on their computer

screen through which they could then input the time code "worked

hours" for the relevant amount of time. 3    In Juppe's own words,

employees "would have to log in and then once they're on their

timecard, they go to the day they didn't take their lunch, they

insert a row and the pay code column they'd do the drop down and

there's a code that says working hours, and they would record

the time that they worked during their lunch."      The extent to

which employees were informed of this procedure and instructed

that they should use it is reserved for later discussion.

     Vitali's alleged lunch time work.      The exigencies of the

company's property management responsibilities sometimes

required employees to work beyond their scheduled hours.      For

those in Vitali's position, the events that required extended

work included mass lease terminations, "[m]onthly closes,

quarter closes, conference calls for bad debt, [and] audits."

As noted, when hourly employees were required to work outside of

the scheduled nine-to-five work day, Kronos automatically

recorded such hours.   In those weeks in which Kronos recorded

Vitali as having clocked more than forty-five hours, she was

paid overtime.   For example, during the week of February 28,


     3
       The time code for "worked hours" (also referenced in the
record as "hours worked") was distinct from the one for "regular
work hours."
                                                                    6


2011, Kronos recorded that Vitali clocked 49.75 hours, and she

was paid for four and three-quarters hours of overtime.

     According to Vitali, her work responsibilities also

required her to work during her lunch breaks on average three to

four times per week.   The employees in her unit did not have

specifically scheduled lunch breaks; instead, people took them

"when they could."   Vitali "always" brought her lunch and

"typically" ate it at her desk in her cubicle.   While she was

taking such breaks, people would bring her assignments that

required prompt attention.   Vitali provided numerous examples of

specific individuals who would bring such assignments and the

kinds of tasks that required her to do work during lunch.    For

example, she identified Carrie Noyes as someone who "would come

to [her] with bank reconciliation items that she needed resolved

right away for [the company's comptroller and another high

ranking manager]."   Vitali also stated that she regularly

observed others working during their lunch breaks, and she

specifically identified such individuals.

     It is uncontested that Vitali never successfully used the

Kronos drop down menu protocol to record the lunch time work she

claims to have performed, 4 and that she did not receive credit


     4
       According to her deposition testimony, Vitali did try to
use this protocol on one occasion and was unable to do so. It
is not clear exactly when this is alleged to have occurred.
                                                                    7


for any such work toward the accrual of overtime.   Had she been

credited for the work, she would have received some additional

overtime compensation (in those weeks in which her total worked

hours exceeded forty). 5

     The judge's ruling.   The judge concluded that with respect

to Vitali's uncorroborated claims to having worked regularly

during lunch, "her deposition testimony to this effect is

sufficient to create a jury question on [this issue]."   However,

he went on to rule in the company's favor on other grounds.

Specifically, he concluded that Vitali had failed to produce

evidence upon which reasonable jurors could conclude that the

company knew or should have known that Vitali had engaged in

uncredited overtime.   In this regard, the judge deemed it

critical that Vitali had failed to report her lunch time work in

accordance with available procedures, even in the face of the

company's general policy against paying overtime except where

employees had obtained prior approval.   The judge also found it

significant that -- in contrast to some of the cases that Vitali

had cited -- there was no evidence here that the company had



     5
       Thus, for example, if Vitali were credited for doing a
total of two hours of lunch time work in the week that she
clocked 49.75 hours in Kronos, she would have been entitled to
six and three-quarters hours of overtime (since her clocked time
would have included only three hours of lunch breaks, not the
five that the company assumed).
                                                                      8


pressured Vitali not to report the hours for which she was

seeking credit.

     Discussion.    The payment of overtime is governed by G. L.

c. 151, § 1A.    That statute "was 'intended to be essentially

identical' to the Fair Labor Standards Act of 1938 (FLSA), 29

U.S.C. § 207(a)(1)(2000)."    Mullally v. Waste Mgmt. of Mass.,

Inc., 452 Mass. 526, 531 (2008), quoting from Swift v. AutoZone,

Inc., 441 Mass. 443, 447 (2004).    Accordingly, in interpreting

the State law, we look to how the FLSA has been construed.      See

ibid.    The case law has interpreted the FLSA in a manner that is

highly protective of employee rights.    As the United States

Court of Appeals for the Second Circuit recently observed, "[i]n

service of the [FLSA's] remedial and humanitarian goals, the

[United States] Supreme Court consistently has interpreted the

[FLSA] liberally and afforded its protections exceptionally

broad coverage."    Chao v. Gotham Registry, Inc., 514 F.3d 280,

285 (2d Cir. 2008).

     Pursuant to the FLSA, an employee must prove both that he

incurred unpaid overtime work, and that the employer "had actual

or constructive knowledge that he was working overtime."    Prime

Communications, Inc. v. Sylvester, 34 Mass. App. 708, 709

(1993). 6   The knowledge inquiry requires an assessment of what


     6
       The cases have consistently so held. Nevertheless, Vitali
argues that under G. L. c. 151, § 1A, an employer should be
                                                                     9


the employer knew or should have known, and is to be made in

view of the employer's "duty . . . to inquire into the

conditions prevailing in his business."   Gulf King Shrimp Co. v.

Wirtz, 407 F.2d 508, 512 (5th Cir. 1969) (quotation omitted).

In other words:

     "In reviewing the extent of an employer's awareness, a
     court 'need only inquire whether the circumstances . . .
     were such that the employer either had knowledge [of
     overtime hours being worked] or else had the opportunity
     through reasonable diligence to acquire knowledge.'"

Reich v. Department of Conservation & Natural Resources, 28 F.3d

1076, 1082 (11th Cir. 1994), quoting from Gulf King Shrimp Co.

v. Wirtz, supra.

     To the extent that an employee has reported his hours in

accordance with the employer's mandated timekeeping procedures,

the employer's knowledge of those hours is not in doubt.     Thus,

the cases concerning an employer's knowledge all involve

employee claims for unreported hours.   In such cases, any

failure by the employee to use prescribed timekeeping procedures

is obviously a point in the employer's favor.   However, that

failure is not fatal to the employee's claim if he or she is



liable regardless of whether it knew or should have known of the
overtime. In the alternative, Vitali argues that the employer
should have to bear the burden of proof regarding its lack of
knowledge. Putting aside that these arguments were not raised
in the trial court (and therefore have been waived), Vitali has
provided no reason why G. L. c. 151, § 1A, should be interpreted
at odds with the "essentially identical" FLSA.
                                                                    10


able to marshal other proof that the employer had actual or

constructive knowledge of the unpaid overtime.   See, e.g.,

Holzapfel v. Newburgh, 145 F.3d 516, 524 (2d Cir. 1998) ("[O]nce

an employer knows or has reason to know that an employee is

working overtime, it cannot deny compensation even where the

employee fails to claim overtime hours").   Thus, even where the

employer has expressly prohibited overtime work, if it had

reason to believe that such work was being done, "the employer

cannot sit back and accept the benefits without compensating for

them."   Reich, supra at 1082, quoting from 29 C.F.R. § 785.13. 7

Conversely, if the employee is unable to marshal proof that the

employer knew or should have known of the overtime work, the

employee cannot prevail.   See Prime Communications, Inc., supra

at 711, quoting from Forrester v. Roth's I.G.A. Foodliner, Inc.,

646 F.2d 413, 414 (9th Cir. 1981) (no FLSA liability "where an

employer has no knowledge that an employee is engaging in

overtime work and that employee fails to notify the employer or

deliberately prevents the employer from acquiring knowledge of

the overtime work").

     7
       As the judge recognized, some cases that have found
sufficient evidence of employer knowledge of unpaid overtime (in
the face of timekeeping records to the contrary) rest in part on
evidence that the employer pressured employees to underreport
their time. See, e.g., Kuebel v. Black & Decker Inc., 643 F.3d
352, 363-364 (2d Cir. 2011) (employees told not to record their
overtime). However, none of these cases hold or even suggest
that such bad faith conduct is a prerequisite.
                                                                      11


     We are mindful that, in reviewing the summary judgment

record, we must consider not only any direct evidence of the

employer's knowledge (actual or constructive), but also "all

reasonable inferences" to be drawn from the evidence.    Godfrey

v. Globe Newspaper Co., 457 Mass. at 119.    Indeed, an employer's

knowledge, like other "state of mind" inquiries, "is elusive and

rarely is established by other than circumstantial evidence."

Blare v. Husky Injection Molding Sys. Boston, 419 Mass. 437, 439

(1995).   Questions such as knowledge and intent often "require[]

the jury to weigh the credibility of conflicting explanations."

Id. at 440.   Thus, the determination of what a person knows or

should have known under a specific factual situation is

typically ill-suited for resolution by summary judgment.      Riley

v. Presnell, 409 Mass. 239, 247-248 (1991).

     Turning to the application of these principles here, we

first examine whether the record creates a factual dispute

regarding whether the company knew or should have known that

Vitali did not take her full lunch breaks.    We then turn to

whether there was sufficient evidence in the summary judgment

record that the company knew or should have known that Vitali

was not receiving credit for such time.

     There was ample evidence upon which jurors could conclude

that the company generally was aware that many of its employees

sometimes worked during their allotted lunch breaks.    For
                                                                    12


example, as discussed further below, when Kronos was first

rolled out, the company's payroll department received multiple

employee inquiries about how to record lunch time work. 8    One of

the company's own affiants even stated that during the relevant

period, she "typically worked through lunch" as a matter of mere

personal preference.   Indeed, the practice of employees working

through lunch apparently became so pervasive that the company on

several occasions had to remind employees that they were

supposed to take at least a one-half hour lunch break. 9    Other

than those periodic reminders, there is no evidence that the

company sought to limit its employees from working during their

lunch breaks.   This is hardly surprising given that work done

during a lunch break cost the company no extra direct




     8
       Eventually, Kronos was upgraded so that employees could --
and were required to -- log out for lunch and log back in when
they returned (thus allowing more accurate reporting of the
length of the lunch breaks that employees took). The records
generated after this upgrade showed a widespread practice of
employees not taking their full lunch breaks. Although the
Kronos system upgrade took place after Vitali had left the
company's employ, there was deposition testimony that employee
lunch patterns were the same both before and after the upgrade.
     9
       Pursuant to G. L. c. 149, § 100, employers are required to
provide employees who work at least six-hour shifts a one-half
hour lunch break.
                                                                    13


compensation (since the employees were already being paid for

that time). 10

     In addition, there was evidence from which reasonable

jurors could conclude that the company knew, or had reason to

know, that Vitali in particular did not take her full one-hour

lunch breaks.    Unlike the typical overtime case where the extra

work the employee claims to have performed was done off-site,

the alleged work here was done at her cubicle desk in an office

setting. 11   It is uncontested that Vitali typically took lunch

breaks at her desk, and the company concedes "that, at times,

Ms. Vitali received various work-related assignments throughout

her day" from her supervisor. 12   The company has not actually


     10
       In pointing out that the company did not have an
incentive to discourage lunch time work, we do not mean to
suggest that the company therefore was acting in bad faith.
     11
       In the off-site context, a supervisor may well have
little basis for knowing how many hours an employee has worked
except to the extent the employee reports them. This tends to
put a premium -- for both employer and employee -- on employee
compliance with whatever reporting systems are in place.
Nonetheless, an employee's failure to report off-site overtime,
even while attesting to the accuracy of his time records, is not
fatal if the employee can produce evidence that the employer
knew or should have known of the overtime. Reich, 28 F.3d at
1084. See 29 C.F.R. § 785.12 (making explicit that employer
that knows or has reason to know of work performed away from job
site must compensate for that time).
     12
       We note that the Federal regulations issued pursuant to
the FLSA address when nominal meal breaks are sufficiently
interrupted by work demands to be considered compensable work
time. See 29 C.F.R. § 785.19; Beasley v. Hillcrest Med. Center,
78 Fed. Appx. 67, 69 (10th Cir. 2003) (analysis under 29 C.F.R.
                                                                 14


challenged Vitali's specific averments as to the pressing nature

of the assignments that she claims prevented her from taking her

full lunches. 13   Especially given that the state of an employer's

knowledge is to be assessed in light of its duty to inquire into

the attendant working conditions, there was ample evidence on

which jurors reasonably could have concluded that the company at

least had reason to know that Vitali sometimes performed work

during her lunch breaks.    There was also evidence, discussed

infra, that the company had actual knowledge of at least one

occasion on which Vitali worked through her lunch break. 14



§ 785.19 focuses on "whether the degree of interruption caused
[the employees] to spend their meal periods primarily for [the
employer's] benefit"). Neither party has addressed the
potential relevance of the FLSA regulations to this case, and we
do not rely on them.
     13
       The company accurately points out that Vitali did not
produce evidence to "demonstrate[] that a supervisor or other
individual ever specifically asked Ms. Vitali to perform such
work during her lunch break." However, such proof is
unnecessary, since "an employer can be charged with constructive
knowledge even when an employee has not alleged a supervisor's
direct knowledge." Allen v. Board of Pub. Educ., 495 F.3d 1306,
1321 (11th Cir. 2007). If the company knew or had reason to
know that Vitali was performing the assigned tasks during her
lunch breaks, whether anyone specifically directed her to do the
work at that time is beside the point.
     14
       A month into the rollout of Kronos, Vitali informed the
payroll department that she was unable to take lunch on a
particular day (thus providing the company with direct knowledge
that she had performed lunch time work that was not recorded in
Kronos). Although Vitali stated that this was the only day that
week in which she worked through lunch, she never represented to
the company that it was the only time this had ever or would
ever occur. In addition, while the company suggests that Vitali
                                                                    15


     Seeking to avoid the implication that it had reason to know

that Vitali was performing work during her lunch breaks, the

company highlights that it had a sternly worded policy in place

requiring all employees to obtain specific prior approval before

working overtime. 15   See Newton v. Henderson, 47 F.3d 746, 749-

750 (5th Cir. 1995) (employee cannot thwart clearly-enforced

policy against working overtime).    This argument is unavailing

for two reasons.   First, the company has not shown that its

policy requiring prior approval for overtime work had any

application to employees performing work during their lunch

breaks.   Although lunch time work (like any other work done

during the scheduled nine-to-five work day) counts toward the

forty-hour threshold that needs to be crossed for overtime to be

due, it does not itself constitute overtime.    Thus, an hourly

employee who worked through every lunch break would still not be

entitled to any overtime unless she performed additional work

outside of the normal nine-to-five work day.    Notably, in

reminding employees of the need to seek prior approval for



admitted that she took her full one-hour lunch breaks by
commenting (in response to criticism about her job performance)
that "I am working from the time I come in, excluding lunch
until the time I leave," reasonable jurors would not be required
to attach such import to that comment.
     15
       That policy edict was plainly stated in the employment
manual that all employees received, and it was widely
disseminated to employees through other means as well.
                                                                  16


overtime work, the written instructions that the company

provided for using Kronos specifically equated "working

overtime" with "coming in early or staying late." 16   The company

was free to adopt a policy requiring employees to obtain prior

approval before performing work on their lunch breaks; it simply

did not do so. 17

     Second, there was evidence in the summary judgment record

that the company's policy of requiring specific prior approval

for overtime was honored in the breach.   For example, one of the

company's own affiants stated that her supervisor had given her

"general blanket approval for overtime" when her department was

"unusually busy."   Where an employer in practice fails to

enforce a formal employment policy limiting overtime work, a

jury could infer that the employer knew or should have known

that employees were engaged in unauthorized overtime


     16
       The company made no showing that Vitali failed to report
her work done before nine or after five. To the contrary, it
attempts to make use of the fact that she knew how to report the
overtime for which she was paid.
     17
       In fact, the company's information technology (IT) unit
instituted a strict policy that required members of its support
services team to obtain a supervisor's approval for any work
done during a lunch break. This was set forth in a memorandum
that also explained the relationship between working through
lunch and the accrual of overtime hours. As the judge
recognized, "[t]here is no evidence in the summary judgment
record to suggest that Vitali, who did not work in the IT
department, actually received or was aware of [this]
memorandum."
                                                                    17


notwithstanding the existence of such a policy.     See Reich, 28

F.3d at 1083 (recognizing that employer must do more than

"simply continue to apprise [the employees]" of policy against

working overtime).

     In addition, the company argues that even if it had reason

to know that Vitali at times was not taking her full allotted

lunch breaks, it still had no reason to know that she was not

reporting this lunch time work.   In making this argument, the

company asserts that employees were well informed of the way in

which hours worked during lunch were to be recorded in Kronos.

The company maintains that it was fair and appropriate to assume

that Vitali would have reported any lunch time work through the

means that the company made available, especially where

employees were required to attest to the accuracy of their

recorded time.   In short, the company contends that because

Vitali failed to comply with reasonable reporting procedures,

her case fails as a matter of law.     See White v. Baptist

Memorial Health Care Corp., 699 F.3d 869, 876 (6th Cir. 2012)

("Under the FLSA, if an employer establishes a reasonable

process for an employee to report uncompensated work time the

employer is not liable for non-payment if the employee fails to

follow the established process"). 18


     18
       The company acknowledges that there would be a different
result if Vitali were able to show that it pressured employees
                                                                   18


     There are several problems with this argument.    To begin

with, "[t]he FLSA makes clear that employers, not employees,

bear the ultimate responsibility for ensuring that employee time

sheets are an accurate record of all hours worked by employees."

Skelton v. American Intercontinental Univ. Online, 382 F. Supp.

2d 1068, 1071 (N.D. Ill. 2005).   Moreover, "an employer's duty

under the FLSA to maintain accurate records of its employees'

hours is non-delegable."   Kuebel v. Black & Decker Inc., 643

F.3d 352, 363 (2d Cir. 2011).   The company has not shown, as a

matter of law, that it has satisfied its timekeeping

responsibilities here.   Although the company maintains that it

instructed employees to record lunch time work and provided them

an accessible and transparent means of doing so, there plainly

was evidence on which reasonable jurors could have concluded

otherwise.   Explaining this requires a close examination of the

instructions that employees received when Kronos was

implemented.

     During the rollout of Kronos, employees were given two sets

of written instructions:   a five-page manual and an

instructional electronic mail message (email) announcing the

"Good News" that Kronos was being implemented.   These documents



into underreporting their hours (see note 7, supra), but it
accurately points out that there was no such evidence presented
here.
                                                                    19


provided discordant advice on the lunch break issue.    The manual

instructed employees to clock out when they began their lunch

breaks and to clock back in when they returned, despite the fact

that, as noted, the version of Kronos that the company initially

had installed did not have that functionality. 19   Had Kronos

included that feature (as it later did following Vitali's

departure, see note 8, supra), then the time each hourly

employee clocked would have been the same as the time they

actually worked (and hence there would have been no need for

employees separately to record lunch time work or for the

company to make assumptions regarding whether such work took

place).

     The "Good News" email, meanwhile, instructed that hourly

employees "do not have to punch in and out for lunch."    What is

particularly telling, however, is what the email did not say.

Nowhere does it state that employees were required to account

for any time they worked during their lunch breaks.    Nor did the

email explain that employees' failure to do so might affect

their overtime.   In fact, the email did not even explain how

employees could record their lunch time work in the Kronos

system except for a cryptic notation that "[i]f you are to work

     19
       Confusingly, the instruction manual included a note that
stated in pertinent part: "In most regions, lunch breaks are
auto deducted whether you clock out or not -- check with your
manager for instruction."
                                                                   20


through a lunch, please use the 'hours worked' code and add the

amount of in time worked in increments of .25 only."

     In distributing the instruction manual and email, the

company told employees that if they had problems or follow-up

questions, they should contact the payroll department for

assistance.   Although the email raised the possibility of group

training sessions being held, there is no evidence in the record

that any were provided.   Individual employees in fact did follow

up with the payroll department to complain that Kronos was "not

user friendly."   Multiple employees specifically asked about

what they should do about recording lunch time work.    The

company's payroll supervisor stated that she generally responded

to these inquiries by trying to instruct the inquiring

individual on the appropriate procedure for recording such time,

the drop down menu protocol referenced supra. 20   The payroll

supervisor conceded that she did not necessarily provide such

instruction to all individuals who inquired about this subject,




     20
        The company produced affidavits from two current
employees who stated that they were told how to navigate the
protocol for recording lunch time work and who averred that they
were "not aware of any overtime for which [they had] not been
properly paid." Of course, the fact that the company
successfully may have trained some employees about how to record
lunch time work says nothing about the training it provided to
Vitali.
                                                                   21


and she was unable to explain why she did this in some cases but

not others. 21

      In an email exchange, Vitali herself puzzled over what to

do about recording time worked during her lunch hour.

Specifically, on March 15, 2010, a month after Kronos was

implemented, Vitali sent an email inquiry to the payroll

department (as instructed).    Vitali noted that she was unable to

take lunch that day, and she sought advice on how to "mark" that

in Kronos.   Her email was forwarded to payroll supervisor Juppe,

who responded that "[i]f your physically worked hours for this

week [are] over 40 hours we can discuss how the lunch time for

today should be recorded."    In response, Vitali stated that it

was just that one day that week that she had to work through

lunch, and she requested that Juppe tell her what she needed to

do.   Juppe responded that "[t]here is nothing you need to do for

this as your total hours for the week do not exceed 45." 22   This

was the last interchange that Vitali and Juppe had on the

      21
       Juppe's deposition answers suggest that she may have
drawn a distinction between time that employees spent working
"through" a lunch (as to which she would tell employees they
should use the drop down menu protocol) and time that employees
spent addressing "quick work assignment[s]" that they were asked
to do while taking lunch at their desks (as to which she
responded that she was "not sure" what employees should do to
record their time).
      22
       Although the judge concluded that Juppe's response "would
not have been misleading," he recognized that in fact it "was
mathematically inaccurate."
                                                                  22


subject:   there is no evidence that Juppe provided Vitali any

guidance about how to report time worked during lunch in weeks

where it could make a difference, nor that Vitali made any

further inquiries about this.

     In sum, reasonable jurors could make the following factual

findings based on the summary judgment record.   When the company

moved to Kronos, it did not require that employees record any

lunch time work or even explain to them how their not recording

that time might affect their overall compensation.   Although the

company did provide a method through which employees could

record lunch time work, the written instructions that it

provided about doing so were contradictory, confusing, and

incomplete.   Moreover, at least by the time its payroll

department received the follow-up inquiries from individual

employees regarding the use of Kronos, the company at least had

reason to know both that many employees were performing work

during their lunch breaks and that they were confused as to what

to do about recording such time.   The company did not provide

training to Vitali on how to record lunch time work even when

she specifically had sought advice on the issue.   Instead, the

payroll department advised her that there was nothing that she

needed to do at that time, while leaving her in the dark as to

what the proper procedure would be where her lunch time work
                                                                  23


could make a difference. 23   In short, armed with at least

constructive knowledge that employees were undertaking lunch

time work that should have been credited toward overtime, the

company went ahead and assumed in its favor that employees were

not performing any such work except where they separately

reported it through a process that Vitali was never trained in,

or even told to use.   Under these circumstances, the judge erred

in concluding that the company was entitled to judgment as a

matter of law. 24

                                     Judgment reversed.




     23
        In recounting the summary judgment record in the light
most favorable to Vitali for purposes of the current appeal, we
of course do not mean to suggest that the company necessarily
knew or should have known that Vitali was due unpaid overtime.
That question will be for the jury to decide based on the trial
record.
     24
       Because the judge allowed the company's motion for
summary judgment, he had no occasion to consider whether the
case properly could be maintained as a class action. We express
no view on that issue.
