Secretary United States Department of Labor v. Nursing Home Care Management Inc., doing business as Prestige Home Care Agency

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 23-2284
_______________
SECRETARY UNITED STATES
DEPARTMENT OF LABOR
v.
NURSING HOME CARE MANAGEMENT INC.,
doing business as Prestige Home Care Agency;
ALEXANDER DORFMAN,
Appellants
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:21-cv-2583)
District Judge: Honorable Chad F. Kenney
_______________
Argued: June 5, 2024
Before: HARDIMAN, PORTER, and AMBRO,
Circuit Judges.
(Filed: January 31, 2025)

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Colin D. Dougherty [Argued]
Fox Rothschild
980 Jolly Road, Suite 110
Blue Bell PA 19422
Samuel A. Haaz
Saltz Mongeluzzi & Bendesky
1650 Market Street
One Liberty Place, 52nd Floor
Philadelphia, PA 19103
Brett Berman
Fox Rothschild
Two Commerce Square
2000 Market Street, 20th Floor
Philadelphia PA 19103
Counsel for Appellants
Seema Nanda
Jennifer S. Brand
Rachel Goldberg
Shelley E. Trautman [Argued]
U.S. Department of Labor
200 Constitution Avenue, N.W.
Room N-2716
Washington, D.C. 20210
Counsel for Appellee
______________
OPINION OF THE COURT
______________

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PORTER, Circuit Judge.
Nursing Home Care Management Inc. (“Prestige”) operates
a home healthcare service. It did not compensate its employees
for time spent traveling between clients’ homes. The District
Court held this policy and other acts were willful violations of
the Fair Labor Standards Act (“FLSA”). Prestige challenges
the summary judgment as well as the District Court’s decision
to exclude Prestige’s expert and refusal to sanction the Depart-
ment of Labor (“Department”). We will affirm.
I
Prestige’s business model relies on “Home Health Aides”
(“HHA”), who provide healthcare services at Prestige’s cli-
ents’ homes. The Department previously investigated Prestige
in 2017 for paying an employee straight time for overtime
hours. In a conciliation, the Department sent Prestige’s presi-
dent, Alexander Dorfman, guides advising Prestige on the rules
for compensating its employees. The Department began a
larger investigation a year later culminating in this suit.
The Department sued Prestige for failing to pay HHAs for
time spent traveling between client homes and for not keeping
proper records of travel time; for failing to pay for breaks of
twenty minutes or less; and for compensating employees for
time worked over eighty hours in a biweekly period rather than
forty hours per week. In ill succession for Prestige, the District
Court excluded Prestige’s expert witness and his report, denied
Prestige’s motion for sanctions against the Department, and
granted summary judgment for the Department on every claim.
Prestige’s appeal raises seven questions.

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As to FLSA liability, we ask first: when, if ever, is an
HHA’s travel time between client sites compensable? Second,
did the District Court err in finding Prestige violated the
FLSA’s recordkeeping requirement at 29 U.S.C. § 211(c)? If
not, we ask third: did the District Court err in finding Prestige
acted willfully in five separate violations of the FLSA, thereby
creating another year of liability for statute of limitation pur-
poses under 29 U.S.C. § 255(a)? Fourth, did the District Court
err in concluding that the Department satisfied its burden in
estimating back wages?
We then address three questions under the abuse of discre-
tion standard. Fifth, did the District Court abuse its discretion
in declining to reduce or eliminate liquidated damages and
back pay? Sixth, did the District Court abuse its discretion in
excluding Prestige’s expert and his report? Finally, did the Dis-
trict Court abuse its discretion in rejecting Prestige’s sanctions
motion against the Department for failing to produce a docu-
ment that Prestige already had in its possession?
The most natural reading of the FLSA and its accompany-
ing regulations requires compensation for work-related travel
during the workday. Compensation is required both when the
employee is on duty within the meaning of 29 C.F.R. § 785.15
and, when entering or exiting a period of off-duty rest, the
travel is necessary and constitutes “part of” the employee’s
“principal activity.” Id. § 785.38. Said differently, although
off-duty time is itself non-compensable, the travel time neces-
sary to travel between job sites is “ ‘integral and indispensable’
to a ‘principal activity’ ” and is compensable. IBP, Inc. v. Alva-
rez, 546 U.S. 21, 37 (2005).We will affirm the District Court’s
conclusion that the travel time here was compensable. We
reach the other issues in turn.

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II
The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1345. We have jurisdiction under 28 U.S.C.
§ 1291.
III
We exercise plenary review over the District Court’s grant
of summary judgment. Ellis v. Westinghouse Elec. Co., 11
F.4th 221, 229 (3d Cir. 2021). That “mean[s] we review anew
the District Court’s summary judgment decision[s]” and “ap-
ply[] the same standard[s]” that it was required to apply. Id.
Summary judgment is appropriate only where, construing all
evidence in the light most favorable to the nonmoving party,
“there is no genuine dispute as to any material fact and the mo-
vant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Ellis, 11 F.4th at 229–30.
A
The FLSA regulates how employers compensate their em-
ployees for the “work” they perform. For instance, employers
must pay their employees no less than the federal minimum
wage for each hour of “work” and must pay employees no less
than one and one-half times their regular rate of pay for each
hour “worked” in excess of 40 hours in a workweek. 29 U.S.C.
§§ 206(a), 207(a). The FLSA, however, does not define
“work.” Alvarez, 546 U.S. at 25. The Supreme Court has ex-
plained that an employee “works” within the meaning of the
FLSA when the employee is engaged in some kind of activity
that is “controlled or required by the employer and pursued
necessarily and primarily for the benefit of the employer and

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his business.” Id. (quoting Tenn. Coal, Iron & R. Co. v. Mus-
coda Local No. 123, 321 U.S. 590, 598 (1944)).
1
Prestige asks us to interpret the FLSA by looking to the
Portal-to-Portal Act (“PPA”). Congress enacted the PPA in
1947 in response to a Supreme Court decision holding that time
spent by employees walking from timeclocks near a factory
entrance to their work stations was compensable time at work.
Anderson v. Mount Clemens Pottery Co., 328 U.S. 680 (1946).
The PPA eliminates liability for employers who do not com-
pensate employees for time spent “walking, riding, or traveling
to and from the actual place of performance of the [em-
ployee’s] principal activity or activities” and doing “activities
which are preliminary to or postliminary to said principal ac-
tivity or activities.” 29 U.S.C. § 254(a).
But the PPA only covers transport to the job site “which
occur[s] either prior to the time on any particular workday at
which such employee commences, or subsequent to the time
on any particular workday at which he ceases, such principal
activity or activities.” Id. The time that elapses between the
day’s start and end is not implicated by the text of the PPA.
The Department’s regulations confirm this. It defines a work-
day as “the period between the commencement and completion
on the same workday of an employee’s principal activity or ac-
tivities.” 29 C.F.R. § 790.6(b). The PPA does not cover any
“time within that period,” even if an employee does not “en-
gage[] in work throughout all of that period” and has “a rest
period or a lunch period” instead. Id.
The time at issue arose within the workdays of Prestige’s
HHAs. The Department does not challenge travel time before

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or after the start of home health care, but for travel in between
the start of the first client’s appointment and the end of the last
client’s appointment. Prestige attempts to reframe the regula-
tions in its favor, insisting that, while a split shift constitutes a
single workday, a “ ‘continuous workday’ may be broken up
with non-compensable time, such as ‘off-duty’ or ‘meal break’
periods.” Appellants’ Reply Br. at 6 (citing 29 C.F.R.
§§ 785.16, 785.19). But the regulations Prestige cites simply
say these periods “are not worktime.” 29 C.F.R. § 785.19.
They do not undermine the continuous workday rule. And nei-
ther regulation could extend the statutory authority of the PPA,
which limits itself to the start and end of the workday. 29
U.S.C. § 254(a).
While the Supreme Court and our sister circuits have dis-
cussed the relationship between the PPA and the FLSA, they
have done so in cases that questioned whether particular activ-
ities were part of the first or last principal activity of the work-
day. See, e.g., Alvarez, 546 U.S. at 24 (“don[ning] protective
clothing . . . before they engage in the” principal activity); Ty-
son Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 447 (2016)
(same); Perez v. Mountaire Farms, Inc., 650 F.3d 350, 366–67
(4th Cir. 2011) (same); Singh v. City of New York, 524 F.3d
361, 367–68 (2d Cir. 2008) (commuting to job site while car-
rying work items); Smith v. Aztec Well Servicing Co., 462 F.3d
1274, 1290 (10th Cir. 2006) (same); In re Amazon.com, Inc.,
Fulfillment Ctr. Fair Labor Standards Act (FLSA) and Wage
and Hour Litig., 852 F.3d 601 (6th Cir. 2017) (post-shift secu-
rity checkpoint). When travel occurs “during a continuous
workday . . . [it] is covered by the FLSA” and the FLSA alone.
Aztec Well, 462 F.3d at 1289 (quoting Alvarez, 546 U.S. at 37).

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2
We now turn to the FLSA and the Department’s regula-
tions. To determine whether Prestige’s HHAs are entitled to
compensation for travel, we ask two questions. First, is travel
compensable when the employee lacks the time to go off duty?
Second, if the employee has the time to go off duty, must he
still be compensated for the time necessary to travel between
job sites?
a
Travel time is compensable when an employee lacks the
time to go off duty. Once the workday has commenced, an em-
ployee is entitled to compensation even if he is not working at
every moment of the day; for instance, “a messenger who
works a crossword puzzle while awaiting assignments . . . and
a factory worker who talks to his fellow employees while wait-
ing for machinery to be repaired are . . . working during their
periods of inactivity.” 29 C.F.R. § 785.15. Indeed, “[r]est peri-
ods of short duration, running from 5 minutes to about 20
minutes . . . must be counted as hours worked.” Id. § 785.18
(emphasis added).
These examples establish a general rule: so long as “the em-
ployee is unable to use the time effectively for his own pur-
poses,” he is on duty and entitled to compensation. Id.
§ 785.15. Thus, the parties and District Court are mistaken by
solely asking whether travel time for on-duty employees is a
“principal activity.” § 785.38. The Department’s travel regula-
tion provides that travel that is a principal activity “must be
counted as hours worked.” Id. (emphasis added). It does not
bar compensation for travel hours that are not part of the prin-
cipal activity, but only references the PPA’s bar on post-work

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travel compensation. Id. So where an employee is on duty and
traveling, he is entitled to compensation.
b
When, if ever, is travel from a period of off-duty rest com-
pensable? We conclude that an employer must compensate an
employee for time spent in travel after an off-duty period, but
only for the time necessary to travel between job sites.
An employee goes off duty when he “is completely relieved
from duty” for a period “long enough to enable him to use the
time effectively for his own purposes.” Id. § 785.16(a). These
“are not hours worked.” Id. Similarly, an employee is off duty
if “he is definitely told in advance that he may leave the job
and that he will not have to commence work until a definitely
specified hour has arrived.” Id.
In most cases, an employee is either on duty and compen-
sated or off-duty and not compensated. See id. § 785.16(b) (a
truck driver who “is completely and specifically relieved from
all duty” for a six-hour period “is not working . . . . He is wait-
ing to be engaged.”). The District Court and the Department
cite a Tenth Circuit case with a similar premise: bus drivers
who had to ride a shuttle bus during a split-shift to reach the
site of the second shift were on duty because they “[were] not
free to do whatever they wish[ed].” United Transp. Union Lo-
cal 1745 v. City of Albuquerque, 178 F.3d 1109, 1119–20 (10th
Cir. 1999). The facts are slightly different here. Prestige’s off-
duty employees can go wherever they want and begin their
travel to a client’s home from wherever they want, so it is
harder to say when they return to on-duty status.

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The Department’s travel rule provides a test to evaluate
whether travel time is compensable: when an employee is en-
tering or exiting an off-duty period, travel time is compensable
if it is “part of [the employee’s] principal activity.” 29 C.F.R.
§ 785.38. The Department defines principal activities as those
“which the employee is employed to perform.” Id. § 790.8(a)
(quotation marks omitted). In turn, the Supreme Court has said
that “any activity” is a principal activity if it is “integral and
indispensable” to another principal activity. Alvarez, 546 U.S.
at 37. Last, “an activity is not integral and indispensable . . .
unless it is an intrinsic element of those activities and one with
which the employee cannot dispense if he is to perform those
activities.” Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27,
35 (2014).
The District Court applied this test to the whole of Pres-
tige’s HHAs. Doing so, however, was unnecessary for those
HHAs who were already on duty and muddled the question of
whether employees who travelled longer than necessary after
traveling off-route during an off-duty period are still entitled to
compensation. Those employees are entitled to compensation,
but only for the travel that was necessary to travel between job
sites. By necessary, we mean travel which is “integral and in-
dispensable.” Alvarez, 546 U.S. at 37.
When one of Prestige’s HHAs travels prior to or following
an off-duty rest period, he or she must be compensated be-
cause, as the District Court observed, it is in the name of the
occupation: “home health aide[s].” J.A. 12. These are employ-
ees who “could not provide their services of caring for clients
in clients’ homes” without at least some travel. Id. That must
be “integral and indispensable,” because an HHA must always
spend time traveling on a workday if he or she has multiple
clients in different locations. Alvarez, 546 U.S. at 37. This is

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exactly the type of traveling worker that the Department’s
travel rule envisions: one who “travel[s] from job site to job
site during the workday” is one whose travel “must be counted
as hours worked.” 29 C.F.R. § 785.38. Such travel is therefore
“integral and indispensable,” and thus a compensable “princi-
pal activity.” Alvarez, 546 U.S. at 37.
Travel is not necessary, for example, when it would not be
“integral and indispensable” to the principal activities to which
the employee is assigned. Said differently, an employee’s mar-
ginal travel that is unnecessary to move between job sites is not
compensable. Some of Prestige’s employees traveled home, to
another job, or went shopping. Such travel is not entitled to
compensation.
4
Prestige says this theory of compensation is “unworkable”
and “would require estimation of the compensable portion of
travel” in a manner that would violate the FLSA. Appellants’
Br. at 29. We disagree. It is true that an employer may violate
the FLSA by “[e]stimating hours worked.” Williams v. Tri-
Cnty. Growers, Inc., 747 F.2d 121, 128 (3d Cir. 1984). But this
misses the point. An employer under the FLSA must “make,
keep, and preserve” records of “[employees] and of the wages,
hours, and other conditions and practices of employment.” 29
U.S.C. § 211(c). Prestige’s duty is simply to make a record so
that the employer and employee have “the most probative facts
concerning the nature and amount of work performed” to pro-
vide for a clean resolution of the dispute before them. Mount
Clemens, 328 U.S. at 687.
Room for estimation is made in the text of the FLSA’s ac-
companying regulations. For instance, an employer may use

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time clocks or round “to the nearest one-tenth or quarter of an
hour” to ensure employees are fully compensated. 29 C.F.R.
§ 785.48. Neither method is required, but the Department per-
mits both “provided that [they are] used in such a manner that
. . . will not result, over a period of time, in failure to compen-
sate the employees properly.” Id.
Prestige’s other arguments against compensating employee
travel time come up short. Prestige argues “travel is not closely
related to the productive work [the HHAs] are employed to
perform . . . feeding, bathing, providing medication, and dress-
ing their clients.” Appellants’ Br. at 24. It is true that an act
which is too far “removed from the productive activity” may
not be integral. Alvarez, 546 U.S. at 42. But an activity “need
not be predominant in some way over all other activities” to
qualify as principal. 29 C.F.R. § 790.8 (emphasis added). Pres-
tige’s HHAs are hired to travel and provide care to clients
where they reside, rather than meeting them in hospitals or
clinics. Because the HHAs cannot apparate, the “particular cir-
cumstances” of this case and “common sense” dictate that
travel is integral and indispensable to providing in-home
healthcare. Id. § 785.14 (quoting Cent. Mo. Tel. Co. v. Con-
well, 170 F.2d 641, 646 (8th Cir. 1948)) (discussing waiting
time).
Prestige also contends that the District Court should have
adopted the Federal Circuit’s position on travel time in Bridges
v. United States, 54 F.4th 703 (Fed. Cir. 2022). But that case
addressed the claims of federal employees, who are subject to
regulation by the Office of Personnel Management and not the
Department of Labor. 29 U.S.C. § 204(f). So, it is inapposite.
Finally, Prestige suggests we should not consider travel
necessary merely because, “[i]f an HHA did not want to travel

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but still serve multiple clients, they could (and did) schedule
visits . . . in the same building” and could also choose whether
to accept a new client who was in a different location. Appel-
lants’ Br. at 34. Alternatively, Prestige contends there is a gen-
uine, material factual dispute over whether its HHAs were “re-
quired” to travel. Id. at 30. But work that is “suffered or per-
mitted is work time,” no matter the employee’s reason for tak-
ing on more work. 29 C.F.R. § 785.11. There is no genuine
dispute that Prestige permits its employees to structure their
workdays in a manner that necessitates travel, so it is irrelevant
if they are required to travel. On these grounds, their work is
compensable.
B
Prestige next challenges the District Court’s holding that
Prestige breached the FLSA’s requirement that an employer
“make, keep, and preserve” accurate employment records. 29
U.S.C. § 211(c). The District Court did not err. The travel time
at issue was compensable, so Prestige had a duty to maintain
adequate records. Mount Clemens, 328 U.S. at 687.
C
Next, we consider the District Court’s finding that Prestige
willfully violated the FLSA. The District Court found that
Prestige willfully violated the FLSA through the following five
actions: “(1) [its] failure to compensate for travel time; (2) [its]
failure to compensate for breaks of 20 minutes or less; (3) [its]
compensation [scheme for] employees who worked overtime;
(4) [its] compensation of dual-service employees; and (5) [its]
recordkeeping practices.” J.A. 26. For each violation, a finding
of willfulness extends the period of liability from two years to

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three years. 29 U.S.C. § 255(a).1 The burden of showing will-
fulness is on the plaintiff. McLaughlin v. Richland Shoe Co.,
486 U.S. 128, 135 (1988).
A violation is willful if “the employer either knew or
showed reckless disregard for the matter of whether its conduct
was prohibited by the statute.” Id. at 133. The line between
willful and non-willful conduct can be narrow. On one hand, a
defendant who “act[s] reasonably and in good faith in attempt-
ing to determine whether its plan would violate the [FLSA]”
does not act willfully. Trans World Airlines, Inc. v. Thurston,
469 U.S. 111, 129 (1985). It is also insufficient to show merely
that “an employer knew that the FLSA was in the picture.”
McLaughlin, 486 U.S. at 132 (quotation marks omitted). In-
stead, willfulness is “voluntary, deliberate, [or] intentional.”
Id. at 133 (quotation marks omitted). It arises where one who
“ha[s] actual notice of the requirements of the FLSA” goes
1 Prestige failed to preserve its challenge to the third willfulness
holding (regarding its eighty-hour overtime scheme) on appeal.
An appellant must provide his “contentions and the reasons for
them, with citations to the authorities and parts of the record
on which [he] relies.” Fed. R. App. P. 28(a)(8)(A). A brief that
fails to do so is “passing and conclusory” in nature and “do[es]
not preserve an issue for appeal.” Doeblers’ Pa. Hybrids, Inc.
v. Doebler, 442 F.3d 812, 821 n.10 (3d Cir. 2006). While Pres-
tige references the scheme in its argument on damages, it never
contends that its violation was not willful. Nevertheless, we
address all five willfulness holdings.

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forward in violating them. Dole v. Elliott Travel & Tours, Inc.,
942 F.2d 962, 967 (6th Cir. 1991).
First, Prestige behaved with at least reckless disregard to
whether FLSA required it to compensate its HHAs for travel
time. While the Department did not tell Prestige whether travel
was compensable, it did inform Prestige that any time where
its HHAs were “providing services or [were] required to be
available to provide services” was time worked. J.A. 971. So
Prestige therefore at least acted with reckless disregard of the
fact that its HHAs’ necessary travel was protected and com-
pensable under the FLSA.
While we agree Prestige willfully violated the FLSA with
respect to its failure to compensate employee travel time, we
disagree with the District Court’s rationale that, because
“[Prestige knew] that [it has] taken a position as to travel time
that is directly contrary to that of the Department,” it acted will-
fully. J.A. 23–24. That would give the Department unlimited
fiat to decide the legal, statutory-interpretation question of
what conduct the FLSA prohibits so far as willfulness is con-
cerned. But the Department’s legal opinions do not carry that
weight. See, e.g., Loper Bright Enters. v. Raimondo, 603 U.S.
369, 394 (2024); Sackett v. EPA, 598 U.S. 651, 681 (2023).
Likewise, we will not turn the FLSA willfulness standard into
a demand to seek legal advice from the Department. The Su-
preme Court expressly rejected such a requirement in
McLaughlin and indicated that a “completely good-faith but
incorrect assumption” of compliance is not willful. 486 U.S. at
134–35.
Second, we agree that Prestige behaved with reckless dis-
regard in failing to compensate breaks of twenty minutes or
less. Prestige is correct that the District Court erred in

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concluding willfulness existed simply because Prestige vio-
lated the FLSA and knew (without alleging knowledge of the
law) that Prestige’s employees were not being compensated for
such short break periods. If we were to accept the District
Court’s contention that breach of “the clear black letter law of
the FLSA constitutes reckless disregard,” J.A. 25, it would ren-
der the FLSA’s two-year statute of limitation for mere breach
superfluous. We will not adopt a reading “that would render”
a whole clause “superfluous.” United States v. Cooper, 396
F.3d 308, 312 (3d Cir. 2005). Willfulness requires more than a
mere violation of the FLSA. See McLaughlin, 486 U.S. at 134–
35.
But the record shows Prestige had notice of the FLSA reg-
ulations providing compensation for breaks. Dorfman testified
that Prestige compensated HHAs for breaks taken during client
visits. There is no principled distinction between a five-minute
break while with the client and a five-minute break between
clients. That, together with Prestige’s notice that short-distance
travel was compensable as part of the HHAs’ service to Pres-
tige, demonstrates reckless disregard for the FLSA’s statutory
and regulatory protections.
Third, Prestige knew or had reckless disregard for the fact
that its overtime compensation scheme violated FLSA. Pres-
tige’s 2017 conciliation with the Department came about be-
cause Prestige paid an employee straight time for overtime
hours. The documents provided to Prestige informed it that
hourly employees were to be paid “for each hour worked in a
workweek in excess of the maximum allowable.” J.A. 1001.
The documents also enumerated exemptions for overtime pay;
among these, that “[h]ospitals and residential care establish-
ments,” and no other kind of business, could utilize a biweekly,
eighty-hour system for overtime. J.A. 995. Prestige was on

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notice that employees were to be paid on a weekly, forty-hour
schedule unless they fell into a category which Prestige does
not claim. That Prestige’s notice came in the context of violat-
ing the FLSA’s overtime rules is also relevant. Chao v. A-One
Med. Servs., Inc., 346 F.3d 908, 919 (9th Cir. 2003). There is
no genuine dispute of material fact that Prestige knowingly or
recklessly violated the FLSA’s overtime compensation re-
quirement.
Fourth, Prestige behaved with reckless disregard in failing
to properly compensate its dual-service employees for over-
time. Dorfman testified Prestige used a system to weigh the
separate pay rates for dual-service employees, but the District
Court concluded, relying on Prestige’s own “records[,] . . . that
[it] did not actually” do so. J.A. 25. Prestige does not contest
that finding or explain the discrepancy.
Fifth, Prestige acted with reckless disregard for the FLSA’s
recordkeeping requirements in failing to keep records of travel
time. It did so knowing the FLSA requires employers to keep
records of hours worked overtime, including “the hours
worked each day, and the total hours worked each week.” J.A.
26 (citing 29 C.F.R. § 516.2).
D
Prestige also challenges the District Court’s conclusion that
the Department met its burden in calculating back wages owed
as a result of Prestige’s violations. The FLSA provides that an
employer who violates the FLSA’s overtime provision “shall
be liable” for “unpaid overtime compensation . . . and in an ad-
ditional equal amount as liquidated damages.” 29 U.S.C.
§ 216(b). The Supreme Court has applied a burden-shifting

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framework to calculate damages. In a case such as this, where
the employer has inadequate records,
an employee has carried out his burden if he proves that
he has in fact performed work for which he was improp-
erly compensated and if he produces sufficient evidence
to show the amount and extent of that work as a matter
of just and reasonable inference. The burden then shifts
to the employer to come forward with evidence of the
precise amount of work performed or with evidence to
negative the reasonableness of the inference to be drawn
from the employee’s evidence. If the employer fails to
produce such evidence, the court may then award dam-
ages to the employee, even though the result be only ap-
proximate.
Mount Clemens, 328 U.S. at 687–88. The employee’s initial
burden “is merely to present a prima facie case,” and nothing
more. Reich v. Gateway Press, Inc., 13 F.3d 685, 701 (3d Cir.
1994).
We have already concluded Prestige’s records were inade-
quate. And we explain below that the District Court did not
abuse its discretion in excluding Prestige’s expert witness. Ac-
cordingly, we conclude Prestige failed to show “the precise
amount of work performed” and to “negative the reasonable-
ness of the inference to be drawn from the employee’s evi-
dence.” Mount Clemens, 328 U.S. at 687–88. The only objec-
tion that remains is whether the Department “produce[d] suffi-
cient evidence.” Id. at 687.
The Supreme Court has never contended that a damages
calculation under Mount Clemens must be perfectly accurate,
because, inevitably, these cases pit employees who might have

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access to work records against companies who should but do
not. Bouaphakeo, 577 U.S. at 456. When an employer’s inad-
equate records create “an evidentiary gap,” the Supreme Court
has held that “representative evidence” forms a “permissible”
basis for determining damages. Id. at 450, 456. That includes
“employee testimony,” video evidence of the unpaid-for work,
and estimates of work time provided by an expert witness. Id.
at 450.
Prestige has provided work records for every employee, but
critically neglects to include travel time for each and every one.
The Department can estimate the travel time for some employ-
ees, but for others the estimate is more difficult. The Depart-
ment limned a prima facie case that the back wages are what it
has estimated, but Prestige failed to counter. The Department’s
approximation, though not perfect, is sufficient.2
IV
We now turn to the final three issues, which are governed
by the abuse of discretion standard. We must affirm “unless
there is a definite and firm conviction that the court below
2 To challenge the award amount, Prestige claims its employ-
ees received lawful overtime compensation through its bi-
weekly overtime scheme. In doing so, however, it relies on ev-
idence absent from the record, which we generally “cannot
consider.” Martin v. Adm’r N.J. State Prison, 23 F.4th 261, 265
n.1 (3d Cir. 2022) (quoting In re Cap. Cities/ABC, Inc’s Appli-
cation for Access to Sealed Transcripts, 913 F.2d 89, 96 (3d
Cir. 1990)). We decline to consider the new evidence.

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committed a clear error of judgment.” Pineda v. Ford Motor
Co., 520 F.3d 237, 243 (3d Cir. 2008) (quotation marks omit-
ted).
A
Prestige contests the evidentiary basis to award backpay
and liquidated damages. 29 U.S.C. § 260 provides that a “court
may, in its sound discretion, award no liquidated damages or
award any amount thereof” up to the double damages contem-
plated by § 216. Section 260 permits a court to decline or limit
liquidated damages “if the employer shows to the satisfaction
of the court that the act or omission giving rise to such action
was in good faith and that he had reasonable grounds for be-
lieving that his act or omission was not a violation of the
[FLSA].” The employer’s burden is “plain and substantial.”
Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 907 (3d Cir.
1991).
An act is not in good faith where the employer lacks “an
honest intention to ascertain and follow the dictates of the
[FLSA].” Marshall v. Brunner, 668 F.2d 748, 753 (3d Cir.
1982). A willful violator necessarily lacks honest intent to
abide by the FLSA. A-One Med. Servs., 346 F.3d at 920. Sec-
tion 260 uses the conjunctive ‘and’—an employer must have
“good faith and . . . reasonable grounds.” (Emphasis added).
So where an employer has reasonable grounds but lacks good
faith, or possesses good faith without reasonable grounds, the
District Court cannot limit or eliminate liquidated damages.
Because Prestige’s FLSA violations were willful, it lacked
good faith; therefore, the District Court did not abuse its dis-
cretion in awarding backpay and liquidated damages.

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B
Prestige challenges the District Court’s decision to exclude
Robert Crandall’s expert’s report. A court must ensure “any
and all expert testimony or evidence is not only relevant, but
also reliable.” Pineda, 520 F.3d at 243 (quoting Kannakeril v.
Terminix Int’l, 128 F.3d 802, 806 (3d Cir. 1997)). The burden
is on the proponent to show that the witness’ “scientific, tech-
nical, or other specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact in issue.” Fed.
R. Evid. 702(a).
Normally, courts are loath to outright dismiss an expert.
Though the burden is on the proponent, we have said “Rule
702 . . . has a liberal policy of admissibility.” Pineda, 520 F.3d
at 243 (quoting Kannakeril, 128 F.3d at 806). An expert is un-
helpful, though, if he states incorrect law. “Incorrect statements
of law are no more admissible through ‘experts’ than are falsi-
fiable scientific theories.” Herbert v. Lisle Corp., 99 F.3d 1109,
1117 (Fed. Cir. 1996).
Crandall made several errors of law. First, he assumed—
without evidence—that travel was “non-work” which “should
be paid at minimum wage.” J.A. 1 n.1. Though we clarify today
when employees who go off duty are entitled to compensation
for necessary travel, the law was clear that certain “non-
work”—such as short rest periods or waiting at attention—
were compensable at the employees’ usual rates. 29 C.F.R.
§§ 785.15, 785.18.
Second, Crandall assumed that overtime pay would be
weighted between the minimum wage and the employees’ nor-
mal rate. In order to pay employees at a weighted average rate,
however, the employer must pay the employees according to

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separate rates for different activities. Id. § 778.115. Prestige
never established separate rates for its HHAs. It would confuse
the trier of fact, therefore, to suggest Prestige could have paid
them less than time-and-a-half.
Third, Crandall excluded from his compensation analysis
all “shifts where [the] incremental gap plus travel time is 10
minutes or less per shift.” J.A. 1 n.1. Crandall did so because,
he thought, the District Court might not compensate this time
as “de minimis.” Id. This notion comes from Mount Clemens,
which suggests “a few seconds or minutes of work” left un-
compensated is a “trifle[]” that the FLSA will not compensate,
even though it might qualify as hours worked. 328 U.S. at 692;
see 29 C.F.R. § 785.18 (rest). We accept that doctrine, but with
critical caveats: an employer has the burden of showing that
time is de minimis in light of several factors, including unfair
surprise to the plaintiff and “the party who controls the relevant
information.” Sec’y U.S. Dep’t of Lab. v. E. Penn Mfg. Co.,
123 F.4th 643, 648 (3d Cir. 2025) (citing Evankavitch v. Green
Tree Servicing, LLC, 793 F.3d 355, 361 (3d Cir. 2015)). Pres-
tige does not contend the time at issue is de minimis, so Cran-
dall’s calculation rests on a false premise.
Crandall’s testimony, then, would erroneously tell the jury
that the HHAs were entitled to a rate of pay that the law does
not permit; that their overtime pay was based on that same un-
lawful rate of pay; and that the period for which they could be
compensated was less than what the law required. These legal
errors undermine the core of Crandall’s testimony. Although
they were not the only subjects of his testimony, these errors
are misleading enough to warrant the District Court’s decision
to exclude Crandall. We cannot find its decision to be an abuse
of discretion.

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Similarly, the District Court did not abuse its discretion in
declining to hold a Daubert hearing. It is “obvious[]” that a
hearing is not required for an expert. Padillas v. Stork-Gamco,
Inc., 186 F.3d 412, 418 (3d Cir. 1999). That decision “rests in
the sound discretion of the district court.” Id. Finding no abuse
of discretion, we will affirm.
C
The District Court declined to award sanctions against the
Department for failure to produce a document that Prestige re-
peatedly requested. Federal Rule of Civil Procedure 37 pro-
vides that a court may sanction a party if that “party fails to
provide information . . . as required by Rule 26(a) or (e) . . .
unless the failure was substantially justified or is harmless.”
Fed. R. Civ. P. 37(c)(1). The District Court did not explain its
reason for denying sanctions, but we conclude that its decision
was not an abuse of discretion.
The District Court did not make a conclusion of law, so we
are left to ask whether the decision was “a clearly erroneous
assessment of the evidence.” Grider v. Keystone Health Plan
Cent., Inc., 580 F.3d 119, 134 (3d Cir. 2009) (quoting Bowers
v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 538 (3d Cir.
2007)). We cannot conclude the District Court abused its dis-
cretion on these facts. Although Prestige specifically requested
these documents, it had them in its possession for several years.
Dorfman testified that he received them via email during the
2017 conciliation. Had the Department produced these docu-
ments again in the proceeding, they would have had little or no
impact. The documents make no mention of travel and only say
that time spent off-duty is not compensable. They do not offer
any guidance as to travel-time compensation nor say whether

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such time is compensated. On these facts, we decline to disturb
the District Court’s holding.
V
For all these reasons, we will affirm the District Court’s
judgment.

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