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).
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)
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)
Landscaping business in operation solely within the state of Florida not engaged in interstate commerce to invoke enterprise coverage.
The citation is Bien-Aime v. Nanak's Landscaping, Inc., --- F.Supp.2d ----, 2008 WL 3892160 (S.D.Fla. Aug. 12, 2008)
Before the Court in Walters v. American Coach Lines of Miami, Inc. were competing motions for summary judgment. The plaintiffs were bus divers who asserted overtime pay claims as well as claims for minimum wage.
The Defendant clearly operates in interstate commerce, driving all over the country. The Court granted summary judgment as to overtime claims against all bus drivers except those who worked on "university" routes which were only intrastate.
The Court granted summary judgment against all minimum wage claims except one in which a plaintiff averred that he had worked 9.5 hours but was paid a total of $36.00. The employer had paid off of log books, although the plaintiffs had argued these were in incorrect.
There is nothing terribly surprising about this decision - one would expect bus drivers traveling across the country to be motor carriers. The case is worth reading because plaintiffs push every argument and have done substantial research in trying to get around the motor carrier exemption to overtime. Perhaps more useful would be plaintiffs' motion for summary judgment and response to defendants' motion. Such arguments could be more successful if the case were not so clear cut.
The citation is Walters v. American Coach Lines of Miami, Inc., --- F.Supp.2d ----, 2008 WL 2967170 (S.D.Fla. July 29, 2008).
In Simon v. Leaderscape LLC the District Court examined the issue of attorney fees. One part of the opinion concerned how to calculate the reasonable hourly rate. The Court noted that it was an expert on attorney fees and needed no outside testimony to establish a proper rate. The Court then turned to a survey conducted by the Florida Bar and a private survey to set rates.
The full citation is: Simon v. Leaderscape LLC, --- F.Supp.2d ----, 2008 WL 2777106 (S.D.Fla. Jan. 8, 2008).
In Carvalho v. Door-Pack, Inc., plaintiffs moved to dismiss defendants counterclaims for lack of federal subject matter jurisdiction. Defendant had asserted counterclaims of defamation and tortuous interference.
The District Court found no supplemental jurisdiction because defendant's claims did not arise out of the same set of facts as plaintiffs' FLSA claims. The Court further found that a predicate for diversity jurisdiction had not been laid by defendants.
Therefore, defendants' claims were dismissed for lack of subject matter jurisdiction.
The full citation is: Carvalho v. Door-Pack, Inc., --- F.Supp.2d ----, 2008 WL 277700 (S.D.Fla. May 23, 2008).
In Godoy v. New River Pizza, Inc., plaintiffs were successful in trying their case to a jury. Plaintiffs' attorneys then requested an attorney fee award.
The District Court reduced the number of hours for which fees would be awarded. Previously, plaintiffs' were awarded attorney fees as sanctions following discovery violations. The Court held that an additional award of these same fees would be double dipping.
The District Court also noted that it found discrepancies in time records submitted to the Court at various stages in the case. The District Court characterized some of the attorneys' work as careless, given that important deadlines were missed.
Based on this assessment, the Court reduced the attorney fees for which plaintiffs would be awarded compensation.
The full citation is: Godoy v. New River Pizza, Inc., --- F.Supp.2d ----, 2008 WL 2777142 (July 10, 2008).
Rance v. Rocksolid Granit USA, Inc. only merits review because it is a circuit court case. In this unpublished decision, the Eleventh Circuit unsurprisingly held that a pro se plaintiff with no evidence of the amount or extent of his overtime cannot maintain a FLSA claim.
The Court also notes that an email from the employer indicates an attempt to properly pay plaintiff. Furthermore, the overtime at issue appears to be one day's work.
Even with the lenient standard applied to pro se plaintiffs, there must be some pleading of the overtime worked.
Finally, the Court remarks that if the plaintiff contends on appeal that he would have amended his complaint if given the chance, the plaintiff must at a minimum indicate what the amendment would have been.
My search for new published overtime cases depends on the speed with which electronic indexing systems identify cases. The class certification order in Vondriska v. Premier Mortg. Funding, Inc. is over a year old, but it appeared today for the first time as a published case. As there are no other published FLSA cases today, Vondriska bears revisiting.
Vondriska was brought by friends of the firm Paul Lucas and Don Nichols. This case illustrates a straightforward application of the Lusardi standard for conditional class certification.
The case involves the alleged misclassification of loan officers. Defendant argued that the decision whether an employee is salary or hourly occurs on the branch office level. Thus the the employer contends there is no common plan at issue to justify certifying multiple branches. Branches also assigned different titles and slightly varying job duties. While the class consisted of loan officers paid by commission, the commissions varied from branch to branch.
The Court is unconvinced by defendant's argument. Minor variations in job duties are insufficient to defeat conditional class certification. The Court notes that the Eleventh Circuit does not require a common plan or scheme.
The Court also addressed issues of the proposed notice. Because potential class members had varying job titles, the Court authorized notice to those whose “primary duty was selling or originating loans inside the branch office.” The parties were ordered to confer further on the issue of the notice.
The full citation is Vondriska v. Premier Mortg. Funding, Inc., --- F.Supp.2d ----, 2007 WL 5314991 (M.D.Fla. May 10, 2007).
