Overtime Attorney Blog

In a decision penned by Priscilla Owen, the Fifth Circuit held that an employee's complaints to her employer regarding wage violations are insufficient to raise a fact question as to whether the employer knew or recklessly disregarded the employee's statutory rights.

Ikossi-Anastasiou v. Board of Supervisors of Louisiana State University is an Equal Pay Act claim. The Equal Pay Act is part of the Fair Labor Standards Act. Under the Equal Pay Act, an employer must pay male and female employees the same wages for the same job.

The FLSA has a two or three-year statute of limitations. The statute of limitations is expanded to three years if the employee proves that the alleged violation was "willful." Willfulness can be shown if the employee proves that the employer "either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988).

Ikossi-Anastasiou attempted to show that the employer willfully violated her rights because she had previously complained that she was dissatisfied with her salary and that she wanted her salary to be adjusted upward to the level of her male colleagues. Owen writes for the court, "however, the facts that Ikossi was paid less than many of her male colleagues and that LSU knew she was dissatisfied with this difference are not enough to raise a fact question as to whether LSU knew or recklessly disregarded that its pay scale was prohibited by the FLSA. Ikossi has not provided evidence that LSU actually knew that the pay structure violated the FLSA, or that LSU ignored or failed to investigate Ikossi's complaints. Without more evidence, Ikossi's allegations of willfulness cannot survive the summary judgment stage."

Finding that Ikossi's claims were outside the two year statute of limitations, the court barred her EPA claims.

Continue reading "Fifth Circuit: Employer's Knowledge of Complaints of Wage Violations Alone is Insufficient to Establish Willfulness" »

Sandoz filed a purported §216(b) collective action against Cingular alleging that she and similarly situated contract sales consultants were not paid minimum wage. Sandoz filed her case, which was removed to federal court. Cingular then made a Rule 68 offer of settlement, and moved to strike Sandoz’s case for lack of subject matter jurisdiction (the make whole offer would divest the district court of jurisdiction). The trial court denied the motion, and the matter came to the Fifth Circuit on expedited appeal.

As a threshold matter, the Fifth Circuit concludes that, unless and until similarly situated employees opt in, a named plaintiff represents only herself. This would ordinarily render the case moot.

However, or “luckily” as the Court puts it, the relation back doctrine allows the motion for class certification to relate back to the filing of the complaint. The test is whether the named plaintiff timely seeks certification without undue delay. Then, if the trial court grants certification, the Rule 68 offer is void because it fails to account for the class. If the trial court denies certification, the Rule 68 applies and renders the named plaintiff’s case moot.

Finally, it is worth noting that footnote 2 appears to bless two-stage certification.

The case is Sandoz v. Cingular Wireless, LLC, --- F.3d ----, 2008 WL 5341434 (5th Cir. Dec. 23, 2008).

One person can make a difference. Constemecka Russell sued Illinois Bell Telephone Company for unpaid overtime and asked the Court to certify her lawsuit as a class action. Ms. Russell asked the Court to send notice to all current and former hourly employees of Illinois Bell call centers in Arlington Heights, Chicago, Rock Island, and Oak Brook who worked sales, service, and similar positions. After Ms. Russell filed her lawsuit, a number of additional call center employees signed forms consenting to be Plaintiffs. The Court applied the two step class certification process. The Court noted evidence of a company-wide policy and practice and that the putative notice recipients are similarly situated.

Illinois Bell argued that the Plaintiff’s proposed notice should be modified. Illinois Bell argued that having the district and magistrate judges name on the notice would cause potential class members to believe that these judges had endorsed the claims in the case. The Court noted that the proposed notice was done on Court letterhead, did not include judicial signatures, and should contain disclaimer that Court has taken no position about the merits of Plaintiff’s claims or Defendants’ defenses. Thus the Court saw no reason to remove the judge’s names. Illinois Bell objected to a statement that individuals who opt-in to the action will be represented by the Plaintiff’s attorneys. The Court refused to reject this language because it was correct. The Court did allow Illinois Bell to insert language that individuals who join maybe required to take an active role in the litigation.

The Plaintiff requested an Excel spreadsheet listing the names, last known addresses, telephone numbers, last four digits of their social security number, and other information regarding potential plaintiffs. Illinois Bell sought to withhold telephone numbers and social security numbers. The Court found that, because the Plaintiffs may use reverse directory searches to locate new addresses for Plaintiffs, telephone numbers must be produced. The Court also found that because partial social security numbers would be used to locate updated contact information, that information must also be produced.

The case is Russell v. Illinois Bell Telephone Co., --- F.Supp.2d ----, 2008 WL 4191763 (N.D.Ill. Sept. 15, 2008).

Noting that "people are not in prison for the purpose of enabling them to earn a living," the Seventh Circuit denied the prisoner's claim that his civil rights were violated when he was not paid minimum wage and overtime. The prisoner correctly argued that the FLSA contains no exemption for prisoners. However, the Seventh Circuit opines that "the reason the FLSA contains no express exception for prisoners is probably that the idea was too outlandish to occur to anyone when the legislation was under consideration by Congress."

The case is Sanders v. Hayden, --- F. 3d. ----, 2008 WL 4206842 (7th Cir. Sept. 12, 2008).

This case involves bridge tournament directors who sued a bridge league for failure to pay overtime. Apparently, bridge tournaments occurred in many states, including Connecticut. The bridge league was headquartered out of Tennessee.

The Plaintiffs filed suit in Connecticut. Defendants moved to dismiss for a lack of personal jurisdiction, or alternatively, sought to transfer the case to Tennessee.

The Court stated that Connecticut would proper venue (1) a substantial part of the events or omissions giving rise to the claim occurred in Connecticut and (2) the bridge league is subject to personal jurisdiction in Connecticut. Plaintiffs showed that they performed work in Connecticut in a significant number of tournaments.

The Court notes that Connecticut’s long arm statute provides that a foreign corporation will be subject to suit in Connecticut if the cause of action arises out of any contract made in Connecticut or to be performed in Connecticut. Thus, because the Plaintiffs have an employment contract with Defendant and the bridge league assigned Plaintiffs to work in Connecticut, jurisdiction in Connecticut is proper.

In the alternative, the bridge league argued that the case should be transferred. Ultimately, however the Court finds that it would be more of a financial hardship on Plaintiffs to litigate in Tennessee and that in a world with copy machines, electronic discovery and emails, litigation in Connecticut is a “non-issue” for the bridge league.

The case is Marcus v. American Contract Bridge League, 562 F.Supp.2d 360 (D.Conn. June 20, 2008).

The FMLA is based on the FLSA. A district court in the Northern District of Illinois has allowed a police officer to seek to hold his police chief personally liable for violations of the FMLA. The Fifth and Eighth Circuits have held that public agency employees maybe be individual defendants under the FMLA while the Sixth and Eleventh Circuits have held that individual employees of public agencies may not be sued under the FMLA. The Illinois court, situated in the Seventh Circuit chose to follow the rule of the Fifth and Eighth Circuits.

The Court also refused to find that the police chief had qualified immunity as a public official. The police chief argued that he was qualifiedly immune because there is no established law as to whether he or his employer should be held liable for the violations of the FMLA. The Illinois Court concluded that the police chief knew that his acts (if proven) would violate a clearly established right; the only uncertainty was who would have to pay for such a violation. This is was insufficient to support qualified immunity.

The case is Rafick v. City of North Lake, 563 F.Supp.2d 885 (N.D.Ill. June 27, 2008).

The Congressional Accountability Act extends the rights and protections of several laws, including the FLSA, to employees of Congress. Apparently employees of the United States Capitol Police Board are employees of Congress.

The CAA requires (1) a request for counseling with 180 days of an alleged violation; (2) attendance at a counseling session in person; (3) a request for mediation within fifteen days of receiving notice of the end of the counseling period; and (4) attendance at a mediation session in person.

The Plaintiff appeared pro se without an attorney. It appears that the Government may not have fairly dealt with the Plaintiff. For instance, the Government provided the Plaintiff with a mediation agreement that began the day after the period to conduct mediation expired. Nevertheless, because the Plaintiff failed to provide factual evidence that he complied with the CAA, the case was summarily dismissed for a lack of subject matter jurisdiction.

The case is Adams v. US Capitol Police Board, 564 F.Supp.2d 37 (D.D.C. July 15, 2008).

Store managers of Caribou Coffee filed suit for unpaid overtime. The Plaintiffs claimed that they were not properly classified as executives under the executive exemption to the FLSA. Previously, the district court had certified a class action for federal claims arising under the FLSA. In considering motions made by both the Plaintiffs and the Defendants, the Court made the following rulings:

(1) The Court denied the Defendant’s motion for decertification,
(2) The Court denied Plaintiff’s motion to reopen the opt-in period, and
(3) The Court granted Plaintiff’s motion for class certification of Minnesota state law claims.

At this second stage of the class certification process, the Court considered three factors (1) the extent and consequences of disparte factual and employment settings of the individuals Plaintiffs, (2) the various defenses available to Defendants which appeared to be individual to each Plaintiff, and (3) fairness and procedural considerations. The court summarized Plaintiffs evidence and found that Plaintiffs had presented specific factual evidence that Caribou store managers had the same job duties and responsibilities, consistently worked more than forty hours each week, and were all impacted by Caribou’s internal policy and practice of considering store managers similarly situated for the purposes of Caribou’s own determination and review. The Court differentiated the instant case from Smith v. Heartland Automotive Services, Inc. because the Caribou managers showed that the written job description generally defined the duties of the Caribou managers. In the Heartland case, involving Jiffy Lube store managers, the Plaintiffs argued that their actual daily duties were different from those in the company job description and therefore there was no common method of defining the job duties. Similarly, the Court differentiated the instant case from Carlson v. C.H. Robinson Worldwide, Inc. in that Carlson involved substantial variations in duties. In particular, the Plaintiffs deposed a former director of operations and district manager who testified that the job duties of the Caribou managers were uniform. The Court also found that the individuals were similarly situated in that they all worked overtime. The named Plaintiffs and eighty-five randomly selected opt-in Plaintiffs completed a questionnaire survey. These questionnaire surveys showed that Caribou managers routinely worked in excess of forty hours per workweek.

Finally, the Court found that Caribou itself considered the managers to be similarly situated when it made its own determination that managers were exempt under the executive exemption. The Court stated that Caribou’s own actions lessened any concern about variations in the Plaintiffs’ employment circumstances. The Court found it “disingenuous” for Caribou to on the one-hand collectively and generally decide that all store managers are exempt, while on the other hand, claimed that Plaintiffs cannot proceed collectively to challenge the exemption.

In considering whether Caribou’s defenses would make the proposed collective action unmanageable, the Court noted that Caribou’s defenses related only to damages. Therefore, the Court recommended a bifurcation of the case into a liability stage followed by a damages stage.

Although the Defendants failed to address the issue of fairness and procedural considerations, the Court made its own inquiry sua sponte. Noting the broad and important purposes of the FLSA and the burdens of decertification, the court concluded that fairness and procedural considerations were satisfied.

The Court then turned to the issue of Minnesota state law overtime claims, these claims must be certified under the requirements of Rule 23 of the Federal Rules of Civil Procedure.

The Court noted that it had supplemental jurisdiction over Minnesota state overtime claims because the state law overtime claims and FLSA claims arise out of the same common nucleus of operative facts. The Court rejected Defendants contention that state law claims would substantially predominate the action by comparing the number of state claims to federal claims asserted. The Court noted that there were 400 individuals who had opted in to the federal overtime claims and the estimate of individuals with state law claims ranged from 150 to 400. Rather, the ratio of state claims to federal claims was not so great as to cause state claims to predominate. The court also noted that the federal and state claims were inherently interrelated. The Court also found no “exceptional circumstances” to justify declining certification of the state law claims.

The Court then turned to the requirements of Rule 23. The Court reiterated its finding that the class members were similarly situated, that they satisfied the numerosity requirement that questions of law and fact are common to all claims, that the named Plaintiffs had claims that were typical of the class members and that the class was adequately represented.

Although several hundred individuals opted in, this case had only three named Plaintiffs. One of the named Plaintiffs, Williams-Goldberg, was not representative of the class because her claims fell outside the stated statute of limitations. The Court found that Williams-Goldberg’s failure to meet the requirements for class representative was not fatal because only “one or more member of a class” need be representative.

The Court moved onto Rule 23(b) and found that common claims dominated and that class certification of claims was superior to other methods of resolving state law claims.

The Plaintiffs moved to reopen the opt-in period because Caribou had opened over 150 stores since the original granting of class certification. The Court found that this would great a never-ending class certification process, prevent discovery with a definite beginning and ending. Presumably, store managers not covered in the instant case could file their own new FLSA action.

The case is Nerland v. Caribou Coffee Company, Inc., 564 F.Supp.2d 1010(D.Minn. May 17, 2007).

The United States District for the Middle District of Florida conditionally certified a class of loan officers in an FLSA action seeking unpaid overtime. The Court applied the lenient standard for notice stage certification and required the Plaintiffs to show (1) that there are other employees who desire to opt into the action, and (2) that those employees are similarly situated.

The Plaintiffs submitted nineteen declarations showing that the putative class members all engaged in cold calling to prospective customers, trying to sell loans to customers, and completing loan applications. The Defendants claimed that differences existed from branch to branch, including differences in job title and job duties. The Court found that such variations were factual issues that are not considered at the notice stage. The Court also disregarded the Defendants' assertion that decisions regarding classification of loan officers are made at the branch level, rather than the corporate level. The Florida Court noted that the existence of a common policy or plan is relevant to whether judicial economy would be served by a collective action and that such issues are more appropriately addressed at the decertification stage.

The Court, apparently sua sponte, noted that the class to be noticed was larger than Plaintiffs request for all “loan officers.” Therefore, the Court defined the class based on specific job duties rather than on job title.

The case is Vondriska v. Premier Mortgage Funding, Inc., 564 F.Supp.2d 1330(M.D.Fla. May 10, 2007).

Following trial but before rendering a verdict, Judge Sarah S. Vance decertified a nationwide collective action of assistant store managers against their employer, Big Lots. The assistant store managers claimed they were improperly classified as exempt under the executive exemption.

Ultimately, however, the Court noted there were simply too many discrepancies between Plaintiffs to support class certification, which relies on the Plaintiffs being similarly situated.

The Court noted that three Lusardi factors are predominantly used to determine if members of class are similarly situate:

(1) the extent to which the employment settings of employees are similar or disparate; (2) the extent to which any defenses that an employer might have to overtime or misclassification claims are common or individuated; and (3) general fairness and procedural considerations.

561 F.Supp.2d at 573. The Court noted only a "handful" of courts have adopted the Rule 23 standards in overtime collective actions.

Unfortunately for Plaintiffs, the class was simply too diverse. The Court found that Plaintiffs moved away from their theory that the position was misclassified and toward a theory based on misclassification on an individual basis. The Court stated "it became obvious that [the Court] could not draw any reliable inferences about the job duties of Plaintiffs as a class." 561 F.Supp.2d at 587.

The citation is Johnson v. Big Lot Stores, Inc., 561 F.Supp.2d 567 (E.D.La June 20, 2008).

The FMLA's joint employer provisions are interpreted similarly to those of the FLSA. Here, an employee brought a suit for violation of her medical leave against a provider of emergency services. The provider obtained payroll and benefits services from two potentially larger employers. The larger employers also had the right to appoint board members to the direct employer.

The Seventh Circuit affirmed that the larger companies were not joint employers because they did not control Plaintiff's job duties. The Seventh Circuit noted no evidence that the board members acted in a representative capacity on behalf of the larger employers, a proposition that stretches common sense -- why else were they appointed?

The case is Moldenhauer v. Tazewell-Pekin Consol. Communications Center, 536 F.3d 640, 13 Wage & Hour Cas.2d (BNA) 1633 (7th Cir. July 31, 2008).

Fifty-three skycaps filed a motion to appeal summary judgment granted against them. The skycaps alleged that they were not paid overtime wages and minimum wages because the employer's tip sharing scheme was invalid. With no further analysis than that the district court's opinion was "well reasoned," the Eleventh Circuit denied the appeal.

The case is Pellon v. Business Representation Intern., Inc., Slip Copy, 2008 WL 4061154 (11th Cir. Sept. 3, 2008)

Employees of Construction Protective Services brought an action for unpaid overtime wages under the FLSA and California law. In discovery, Plaintiffs provided a damages calculation for themselves, but not for the opt-in plaintiffs or the class as a whole. As a sanction for failing to provide this calculation, the trial court granted a motion in limine preventing Plaintiffs from introducing evidence of the opt-in plaintiffs' damages at trial.

The Ninth Circuit held that exclusion of this evidence was an appropriate sanction.

The case is Hoffman v. Construction Protective Services, Inc., --- F.3d ----, 2008 WL 4070195 (9th Cir. Sept. 4, 2008).

Poultry processors filed overtime pay action for unpaid time spent cleaning and sanitizing protective gear. First, the employer argued that time spent washing gear was not compensable pursuant to a CBA. The Court denied the motion, holding that the exception in 203(o) applies only to washing one’s own body, not protective clothing. The Court did hold that, under the CBA donning and doffing (i.e. putting on and taking off clothes) could be excluded.

The Court found that sanitizing gear was integral and indispensable to the work and was more than de minimus.

The employer also argued that thirty minute breaks were properly excluded. However, plaintiffs presented evidence that they had to duff, sanitize, and don their equipment during breaks. This reduced the thirty minute breaks sufficiently to raise a question as to whether they are compensable.

The citation is Burks v. Equity Group-Eufaula Div., LLC, --- F.Supp.2d ----, 2008 WL 3271905 (M.D.Ala. Aug. 7, 2008).

Landscapers who worked solely in Florida and used only materials and supplies purchased at retail stores in Florida were not “engaged in commerce” so as to trigger enterprise coverage.

The citation is Polycarpe v. E & S Landscaping Service, Inc., --- F.Supp.2d ----, 2008 WL 3866498 (S.D.Fla. 2008)