Overtime Attorney Blog

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).

In a truly awful opinion that defies thirty-six years of Department of Labor policy (and common sense), a D.C. District Court judge has ruled that a hotel or apartment complex pool is an amusement or recreational facility. The ruling dismisses plaintiffs' claims for unpaid overtime. The opinion is Ivanov v. Sunset Pools Management, Inc.

Sunset operates and maintains swimming pools for various hotels and apartments around Washington, D.C. The Plaintiffs were lifeguards who worked over forty hours but were not paid overtime.

The Court notes that in the past seasonal recreation and amusement establishment have been amusement parks, carnivals, circuses, sports events, parimutel racing, sport boating or fishing or other similar or related businesses.

In a June 8, 1972 opinion letter, the Department of Labor -- the Richard Nixon Department of Labor -- issued an opinion letter that:

companies “engaged in the business of operating swimming pool facilities ... under contracts with owners or managers of apartment buildings and motels” do not qualify for the exemption on the grounds that “the primary function of pools at apartment buildings and motels is to act as attractions to obtain tenants and guests.... Thus, they are an integral part of the apartment building and motel and not separate amusement or recreation establishments.”

Subsequent letters have stated that if a resort hotel operates a truly separate amusement facility, such separate entity could be considered to be exempt.

There are several problems with the opinion. The first is that a hotel or apartment complex is not an amusement facility. At the very least, one would think there would be a fact issue precluding summary judgment. Second, common areas of a hotel or apartment are not separate entities except in rare circumstances. The logic of the 1972 letter is fairly compelling -- pools at a lodging are part of the lodging for customers. Their only function is to serve customers and to draw customers to the lodging. Certainly customers were paying for lodging.

The opinion throws in a citation to 29 CFR 779.305, separate establishments on the same premises. I would think this regulation would lead to the opposite conclusion from that reached by the Court:

In order to effect such a result physical separation is a prerequisite. In addition, the physically separated portions of the business also must be engaged in operations which are functionally separated from each other.

It just doesn't make sense that pool at a hotel or apartment complex is functionally separated from the residence itself.

It is hard to paint this opinion as anything less than raw judicial activism. The Judge is George W. Bush appointee Richard Leon. Prior to being a judge, Leon represented the Republican House in pursuing Whitewater investigations against the Clintons, defended Republicans against claims of interference in Iran Hostage Crisis in 1991-93 Congressional hearings, and defended the Reagan administration in the Iran-Contra scandal.

The full citation is Ivanov v. Sunset Pools Management Inc., --- F.Supp.2d ----, 2008 WL 2901082 (D.D.C. July 28, 2008).

Under Section 216(b) of the FLSA, putative class members must “opt in” to be included in an overtime class action. Under other claims, including most state law overtime claims, putative class members must “opt out” to be excluded from an overtime class action. These provisions seem inherently contradictory. So what is a Court to do when plaintiffs plead both federal FLSA (opt in) and state overtime (opt out) claims? In Lindsay v. GEICO, the District Court of the District of Columbia navigates this precise question, strictly applies the elements of Rule 23, and illustrates how a class action can be both opt out and opt in.

The plaintiffs alleged that GEICO claims adjustors were misclassified as salaried when they should have been receiving overtime. The plaintiffs pled FLSA violations on behalf of the entire class and also New York wage claims for those class members who worked in New York. Originally, the District Court granted the FLSA “opt in” action but denied Rule 23 “opt out” certification for New York state claims. Thus there was no opt out class for putative class members with New York state claims that did not opt in to the FLSA action. The District Court reasoned that it would be inappropriate for procedural reasons to have concurrent opt in and opt out actions. The D.C. Circuit Court of Appeals reversed and remanded, holding that there is no such inherent conflict.

Thus, the challenge for the District Court is how to apply the law. Resorting to strict construction, the District Court examines whether to exercise supplemental jurisdiction and whether the Rule 23 test for class certification is met.

The District Court holds that supplemental jurisdiction over state claims must be exercised unless “exceptional circumstances” can be shown. Any perceived conflict between Section 216(b) and Rule 23 does not qualify as exceptional circumstances. Indeed, because the state and federal claims are nearly identical, the Court finds that judicial economy, convenience, fairness, and comity all favor the exercise of supplemental jurisdiction.

The District Court next examines Rule 23 class certification. The District Court finds that the 228 putative members are numerous, have common claims, that the named plaintiffs have typical cases, and that named plaintiffs can provide adequate representation. Having met these four preliminary requirement, the District Court then examines whether issues of law and fact common to the class predominate and whether an opt out class is superior to alternatives. The Court has no problem finding the common issue of misclassification predominates. The issue of whether the opt out class is superior to other alternatives again raises the conflict with the opt out provisions of Section 216(b). The District Court rules that if an opt out class is not certified, some putative class members will file individual actions in state court. This does not promote efficiency. Nor did Congress necessarily seek to foreclose opt out class actions when it adopted opt in provisions for the FLSA. First, Rule 216(b) is limited to the FLSA and Congress did not address what it considered best for state law claims. Second, most courts have concluded that allowing New York state claims to proceed simultaneously as opt out classes alongside FLSA actions is superior to alternatives. Finally, having both opt out and opt in claims prevents wasteful and inefficient litigation, eliminates risk that separate courts will enter contradictory holdings, and does not present an issue of manageability for the Court.

There remains only one fly in the ointment. New York state law provides for liquidated damages that cannot be reconciled with New York law preventing class actions on liquidated damages. By waiving their right to liquidated damages under state law, the Court allows the plaintiffs to proceed with their claim.

The full citation is Lindsay v. Government Employees Insurance Company, --- F.R.D. ----, 2008 WL 2673796 (D.D.C. July 3, 2008)