Overtime Attorney Blog

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).

Fact disputes existed preventing Plaintiff from prevailing on her motion for summary judgment as to the administrative, executive, and professional exemptions. Similarly, the Court did not grant summary judgment for plaintiff on overtime pay claims brought under Connecticut state law.


The citation is Asp v. Milardo Photography, Inc., --- F.Supp.2d ----, 2008 WL 3982652 (D.Conn. Aug. 28, 2008)

The Eastern District of New York has certified a class of Dominio's Pizza delivery drivers. The case alleges that drivers were not paid for all hours worked.The Court followed the standard two-step process for FLSA class certification.

The fact that one employee also alleged that he was forced to reimburse money did not destroy the similarly situated nature of the class. Nor did the fact that one plaintiff was a customer service rep as well as a driver prevent a finding of similarly situatedness.

The Court also allowed the plaintiffs to file additional affidavits after the motion for class certification was filed.

Although the Court certified the class of drivers at the location where the plaintiffs were employed, the Court refused to certify additional drivers at a location from which there were no affidavits supporting the motion.

The Court also addressed the issue of what constitutes sufficient notice. The Court did not change the notice other than to limit the description of the class to drivers at the one store location and exclude from the class notice mention of one plaintiff's unique claim of unlawful reimbursement.

The citation is Laroque v. Domino's Pizza, LLC, 557 F.Supp.2d 346 (E.D.N.Y. May 30, 2008).

Barfield, a certified nursing assistant, sued Bellevue hospital for unpaid overtime. Barfield worked for Bellevue through three employment agencies. Barfield spent more than forty hours per week at the hospital, although she never worked more than forty hours for a particular referral agency.

Barfield claimed that Bellevue was a "joint employer" and she won her claim, plus liquidated damages, on summary judgment. The District Court had applied the Second Circuit's six-factor test from Zheng v. Liberty Apparel Co., 355 F.3d 61, 72 (2d Cir. 2003):

(1) whether [defendants'] premises and equipment were used for the plaintiffs' work; (2) whether the [referral agencies] had a business that could or did shift as a unit from one putative joint employer to another; (3) the extent to which plaintiffs performed a discrete line-job that was integral to [defendants'] process of production; (4) whether responsibility under the contracts could pass from one subcontractor to another without material changes; (5) the degree to which the [defendants] or their agents supervised plaintiffs' work; and (6) whether plaintiffs worked exclusively or predominantly for the [defendants].”

The Court also rejected arguments that (1) at least one of Barfield's referral agencies had specifically informed her that she could not work more than 40 hours per week at Bellevue, and (2) Barfield's use of multiple referral agencies to secure assignments to Bellevue prevented defendants from determining how many hours she had worked at the hospital. Bellevue itself had never informed Barfield of any such restriction on her overall employment at the hospital. The evidence also showed that Bellevue's supervisors knew some employment agency nurses were working overtime and the hospital had collected time sheets showing hours worked.

The Court also upheld liquidated damages. To establish the requisite subjective “good faith,” an employer must show that it took “active steps to ascertain the dictates of the FLSA and then act to comply with them.” The Second Circuit noted that it previously characterized the employer's burden as “a difficult one,” emphasizing that “double damages [are] the norm and single damages the exception.” Belleview argued that it relied on the referral agencies to calculated hours worked and FLSA compliance. The Second Circuit says this is not an active step.

Finally, the Court upheld the reduction of attorney fees where plaintiff failed to obtain class certification. It is hard for me to tell from the opinion, but it looks as though plaintiff got around $50,000 in attorney fees on a. recovery of $1,744.50 in compensatory and liquidated damages. It was not, however, the nearly $100,000 that plaintiff and her lawyers had been seeking.

The case is Barfield v. New York City Health and Hospitals Corp., --- F.3d ----, 2008 WL 3255130, (2d Cir. Aug. 8, 2008).

The dispute in this case sounds familiar: plaintiff claimed she was improperly classified as exempt because she primarily performed sales functions, and did not customarily and regularly supervise two full-time employees or their equivalent. Plaintiff also claims that the Body Shop failed to credit or compensate her for work duties which she performed off the clock.

Plaintiff, joined by several dozen opt-ins, moved for class certification. Interesting, the Court only mentions the two-step certification process.

Defendant attempts to defeat certification arguing that plaintiff has not shown that other Shop Managers primarily engaged in sales activities. The Court finds that whether plaintiffs are similarly situated isn't the real question; the question is whether plaintiffs subject to a common practice or scheme. What this really means, in turn, is that the fundamental allegation of the plaintiffs has to be the same.

The Court states:

While there will undoubtedly prove to be variances among the putative class members concerning their duration of employment, the extent to which they performed non-managerial functions, and the percentage of time, if any, that they supervised fewer than eighty subordinate hours per week, plaintiff's fundamental allegation is that defendant denied overtime wages to a number of Shop Managers, by classifying them as exempt even though their duties and supervisory responsibilities fell short of the requirements of the FLSA's executive exemption. As such, the class members are “similarly situated with respect to their allegations that the law has been violated,” and preliminary certification is appropriate.

The Court modified the notice slightly to clarify the class.

In addition to a mailed notice, the Court also ordered a notice posted on the employer's common area bulletin boards. However, the Court declined to order email notice or notice in the company newsletter.

The case is Rubery v. Buth-Na-Bodhaige, Inc., --- F.Supp.2d ----, 2008 WL 3188769 (W.D.N.Y. August 8, 2008).

The case of Whalen v. J.P. Morgan Chase & Co., --- F.Supp.2d ----, 2008 WL 3067893 (W.D.N.Y. August 6, 2008) involved an individual claim for overtime pay brought by an underwriter who authorized loans. The Court found the underwriter to be exempt and not entitled to overtime pay as an administrative employee.

There was little doubt that plaintiff engaged in non-manual work or that issuing $500,000 loans was a matter of significance.

Plaintiff argued that he did not exercise discretion because his job manuals spelled out what he should be doing. Importantly, defendants offered significant evidence of "gray areas" in which the manual did not offer guidance and a judgment call had to be made.

The Court cites 29 CFR § 541.704, "Use of Manuals," although the court does not further explain how the subject matter was "highly technical, scientific, legal, financial or other similarly complex matters that can be understood or interpreted only by those with advanced or specialized knowledge or skills." The Court simply says that citing manuals, in and of itself, is not enough. More directly bearing on the Court's analysis was the Court's citation to Donovan v. Burger King Corp., 675 F.2d 516, 521-22 (2d Cir. 1982). That case had held that a corporation's issuance of detailed guidelines to employees does not prevent the exercise of discretion and independent judgment, where corporate success is as dependent upon discretion "as adherence to ‘the book.’" Under this sort of analysis, if a worker depends more on discretion than on manuals and guidelines, the worker exercises discretion.

The Court also finds that plaintiff was similarly exempt when he was a trainee, even though he only made recommendations - not final decisions. The court notes that "[t]he decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than the actual taking of action." 29 C.F.R. § 541.202(c). The Court's discussion of this matter is a cursory three sentences. The shortness of the analysis indicates that the Court believed the plaintiff did the exact same job as a trainee that he did after training.

The citation is: Whalen v. J.P. Morgan Chase & Co., --- F.Supp.2d ----, 2008 WL 3067893 (W.D.N.Y. August 6, 2008).

Ramirez was a domestic worker from El Salvador hired by a New York family, the Rifkins. Ramirez asserted violations of the FLSA and New York overtime and minimum wage provisions. Like many employers of domestics, the Rifkins kept no time records, did not pay taxes for Ramierez's work, and did not comply with minimum wage and overtime posting requirements.

The Rifkins sought summary judgment on statute of limitations. The Court denied summary judgment on statute of limitations.

The Court noted that for the federal three year statute to apply, defendants' violation must be willful. The Court finds defendants' conduct could be willful for four reasons: (1) defendants did not maintain records, (2) defendants did not withhold taxes, (3) defendants did not provide w-2 forms, and (4) defendants claimed plaintiff was an independent contractor but did not issue 1099.

The Court denied summary judgment against plaintiff's claim of equitable tolling. The Court notes that whether failure to post DOL notices gives rise to equitable tolling is an open question. The Court finds that a fact question has been presented because plaintiff has demonstrated conduct by defendants that could reflect a conscious attempt to conceal from plaintiff both her rights under the law, as well as the factual information regarding her hours that would allow her to understand that she had a legal claim.

Regarding New York state claims, the Court notes the applicable statute of limitations is six years. The Court finds that arguments for equitable tolling would apply equally to state or federal claims.

The case is Ramirez v. Rifkin, --- F.Supp.2d ----, 2008 WL 2559376 (E.D.N.Y. June 23, 2008).

In U.S. v. Sabhnani, the District Court considered the FLSA in a criminal case for its implications on restitution. The criminal defendants were accused of smuggling humans who performed forced labor as domestics. Even though these individuals otherwise resided in an employer's home, the living conditions were so poor that they could not be considered to be a homelike environment. For example, workers slept on the floor and ate food out of the garbage. Thus workers were non-exempt. Regarding hours worked, the Court refused to deduct meal time and sleep time. The Court found there was insufficient sleep time and that workers were always working. Unsurprisingly the Court also denied any credit for meal or lodging. Finally, even though this was a criminal matter, the Court awarded liquidated damages noting that such damages are not punitive but rather represent compensation for the delay in paying.

The full citation is: U.S. v. Sabhnani, --- F.Supp.2d ----, 2008 WL 2791869 (E.D.N.Y. July 19, 2008)

It is hard to imagine a class of people more ripe for exploitation than immigrant farmworkers. However, the case of Centeno-Bernuy v. Becker Farms illustrates how the agricultural employer can find itself in deep manure if it fails to comply with the FLSA and other laws ensuring basic human dignity. Becker Farms sounds like a paradise; offering fresh fruits and vegetables to customers who can shop the retail store or pick their own produce. But Becker proved to be no paradise for the Peruvian H2-A migrants hired to work there from 1997-2001. These workers claim they were denied required wages and overtime, suffered unlawful wage deductions, and were housed in unsanitary conditions. The District Court’s opinion shows how a Court will hold an employer accountable for its actions.

Becker’s lawyers throw a myriad of arguments at the Court, attempting to extricate their client through summary judgment. The Court has little difficultly in casting the employer’s arguments aside and clearing the way for a trial.

The Court first notes that, in obtaining H2-A visas for its workers, the employer is bound by a DOL clearance order. The clearance order requires posting of the order, specific requirements for the hourly rate, recordkeeping requirements, payment of transportation expenses, and adequate housing. As a threshold matter, the Court finds that Becker did not provide copies of the clearance order, did not maintain daily records, made workers pay for their own transportation, and provided housing with a plugged toilet and a rat problem.

Becker begins by arguing that it is not covered by the FLSA. Becker says it is not an enterprise because it had income of less than $500,000. By including grant money and requiring Becker to include income in the year work was performed, the Court finds $500,000 in income through 1999. The Court also finds that 2001 must be included where the previous year’s receipts were $500,000 or greater citing 29 C.F.R. § 779.265. The Court did not address individual coverage, although one would think it certainly applied as well.

Becker then argues that it is exempt under the agricultural exemption because its workers performed less than 500 Man-Days of work. Indeed, the math does not seem to support the plaintiffs. Plaintiffs instead argue that because not all of their work was agricultural, the exemption is inapplicable. The Court sides again with the workers, noting time spent performing construction work, general maintenance, landscaping, valeting cars, training pigs for races, cooking, taking down decorations, and so on.

Based on Defendant’s failure to establish lack of willfulness, the Court denies summary judgment and allows claims for three years to proceed.
Defendant’s only win is the dismissal of Agriculture Worker Protection Act claims because that statute explicitly excludes temporary migrant workers with the visas that the Peruvians had received.

Plaintiffs bring claims for overtime under New York law. Although agricultural workers do not receive overtime under New York law, the law is unclear on workers who perform both agricultural and non-agricultural duties. Although the magistrate judge had dismissed these claims, the District Court modified the ruling by declining to exercise jurisdiction over the state claims. The District Court reasoned that a state court, not a federal court, should rule on this unsettled state law issue.

Of particular interest to wage and hour lawyers may be the clever use of ancillary statutes to enhance minimum wage and overtime claims. Plaintiffs assert an employment discrimination action under New York state law, citing the fact that non-Peruvian workers had their hours properly accounted for. Furthermore, plaintiffs presented evidence of fairly blatant discriminatory statements demeaning the migrant workers. Plaintiffs also assert violations of the implied warranty of habitability because of sewage and infestation issues with their housing.

Plaintiffs assert a contract claim for failure to pay for their transportation to and from the United States. Becker attempts to tie the violation to the three year FLSA limitations period. The Court finds that the provision sounds in contract and applies New York’s six year statute of limitations period.

The Court denies Defendant’s claim that the Wagner-Peyser Act strips H2-A workers of their right to file a private cause of action for failure to exhaust administrative remedies. Noting that Plaintiffs have not asserted Wagner-Peyser Act claims, the Court hold that Wagner-Peyser administrative prerequisites do not apply to the FLSA and state claims.

Finally, the Court denies Defendant’s counter claims of breach of contract asserting that plaintiffs breached a contract for term by quitting early. In light of the fact that Defendants did not provide the DOL’s clearance order containing the terms of the contract, the Court refuses to enforce its terms against Plaintiffs. The Court notes that it “is hard pressed to identify a principle more fundamental than requiring a party to be made aware of the terms of an agreement before he can be sued for breach of it.”

Having denied summary judgment on most issues, the case will proceed to trial.

The full citation is Centeno-Bernuy v. Becker Farms, --- F.Supp.2d ----, 2008 WL 2483285 (W.D.N.Y. June 17, 2008)