MOREMARRONE LLC Obtains Long-Awaited Victory for Hourly Wage Workers as U.S. Supreme Court Denies Certiorari in “Important” Case, E.I. DuPont de Nemours and Co. v. Smiley

The Supreme Court of the United States (SCOTUS) rejects DuPont’s appeal of Third Circuit Court of Appeals decision which unanimously reversed a District Court’s decision that would have let DuPont off the hook for wages in a collective/class action made up of workers who had been denied their overtime pay for “donning and doffing” uniforms and safety equipment, and for performing pre-shift and post-shift work.

Dupont v Smiley FLSA MOREMARRONE Decision 2018-06-28 time card

PHILADELPHIA, PA – June 28, 2018: SCOTUS considered for more than a year whether to take the case on appeal or let the Third Circuit’s ruling stand. The Third Circuit held that the District Court incorrectly concluded that the Fair Labor Standards Act (FLSA) allowed DuPont to avoid paying overtime by taking a “credit” for break-time pay the employer had already paid, and using it to offset the employer’s overtime obligations under the FLSA for off-the-clock work. In its unanimous opinion the Third Circuit, agreeing with attorney Thomas More Marrone’s argument, explained “Here, permitting DuPont to use pay given for straight time—and included in the regular rate of pay—as an offset against overtime pay is precisely the type of ‘creative bookkeeping’ … the FLSA sought to eradicate.”

E.I. DuPont de Nemours and Co. Petitioned SCOTUS to take the case for further review on appeal, raising several issues. The hourly workers’ Counsel of Record before the Supreme Court was Thomas More Marrone of MOREMARRONE LLC, who wrote the Brief in Opposition to DuPont’s Petition. Marrone argued that:

  • DuPont waived its new lead argument by not presenting it to the District Court or to the Third Circuit Panel that decided the case,
  • The Third Circuit decision was not in conflict with Supreme Court precedent.
  • There was no true conflict of Circuits involving the question, so SCOTUS review was not necessary.
  • Even without relying upon the Department of Labor’s interpretation, the Third Circuit’s decision would have been the same, because it was independently based on the FLSA (Fair Labor Standards Act) and Third circuit precedent. Appeal to the Supreme Court would not have changed the result.

SCOTUS agreed with Marrone and denied DuPont’s Petition over the Statement of Justice Gorsuch (with whom Chief Justice Roberts and Justice Thomas joined) who would have accepted the case to consider the “important question” of deference to agency interpretations of Federal Statutes.

The case will now go back to the United States District Court for the Middle District of Pennsylvania for further proceedings. The practical result based on this decision is that the workers have a won their case, and yields a major win for the DuPont hourly workers. The question now to be determined is the calculation of damages and how the workers will be compensated after years of waiting during this herculean fight.

Upon learning of the decision, Thomas More Marrone commented: “This is a welcome and long-awaited victory for hourly workers, and the Third Circuit decision, which the Supreme Court let stand, is a rebuke of corporate wage theft through creative bookkeeping and corporate legal maneuvers. The named plaintiffs in this case deserve special credit for their tenacity, especially Bobbi-Jo Smiley. Her perseverance demonstrates that a strong woman from a small Pennsylvania town can take on a corporate giant and win — she is an inspiration to all, not just women and hourly workers.”

This case filed is E.I. DuPont de Nemours and Co. v. Smiley (Docket No. 16-1189), the petition for certiorari was denied on June 28, 2018 in the following Order:

Thomas More Marrone’s winning Brief may be accessed online at

Co-counsel with lawyer Thomas More Marrone of MOREMARRONE LLC is Patricia Pierce of Greenblatt, Pierce, Funt & Flores.

About Attorney Thomas More Marrone and MOREMARRONE LLC

MOREMARRONE LLC has handled cases producing some of the largest verdicts and settlements in Pennsylvania and New Jersey. The firm represents plaintiffs in significant personal injury, class action, and other complex civil litigation. After a recent 11-month stretch that included two class action jury trials resulting in a settlement and verdict amounting to well over $15 million in addition to several substantial personal injury recoveries, successful business and employment negotiations, and hundreds of satisfied clients, Tom Marrone established his multifaceted firm, MOREMARRONE LLC.

Licensed to practice in the State and Federal courts of Pennsylvania, New York, and New Jersey, Tom Marrone has extensive experience and proven success handling difficult, complex cases, especially class actions and collective actions, cases involving personal injury, employment, wage and hour claims, insurance matters, product liability, consumer protection, consumer fraud, deceptive practices, legal malpractice, and wrongful use of civil proceedings.

Individual and corporate clients also engage MOREMARRONE LLC for advisory services, including legal matters, crisis prevention, and crisis management. A veteran class action trial lawyer, Tom Marrone also offers consultations with other attorneys and law firms related to class action and complex litigation theory development, implementation, and trial strategy.