In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

Nos. 18-2556 & 18-2440 

BRIAN A. WEIL and MELISSA D. FULK, individually and on behalf of others similarly situated, 

Plaintiffs-Appellees/ 

Cross-Appellants, 

v.

METAL TECHNOLOGIES, INC., 

Defendant-Appellant/ 

Cross-Appellee. 

____________________ 

Appeals from the United States District Court for the 

Southern District of Indiana, Terre Haute Division. 

No. 2:15-cv-00016 — Jane Magnus-Stinson, Chief Judge. 

____________________ 

ARGUED JANUARY 18, 2019 — DECIDED MAY 29, 2019 

____________________ 

Before EASTERBROOK, BARRETT, and SCUDDER, Circuit 

Judges. 

BARRETT, Circuit Judge. 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 

costs. 

I. 

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 

wages. 

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. 

II. 

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 mis-
Nos. 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 

III. 

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 CampbellEwald 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. 

We AFFIRM in part, VACATE in part, and REMAND to 

the district court for proceedings consistent with this opinion. 

 

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.”).