 Two Recent FLSA Attorney’s Fee Decisions
August 28th, 2010 Two recent decisions (one of which was obtained by our law firm) uphold the well-established principle that FLSA attorney’s fees need not be proportional to the back wages awarded to workers in FLSA lawsuits. First, in Gonzalez v. Bustleton Services, Inc., 2010 U.S. Dist. LEXIS 85153 (E.D. Pa. Aug. 18, 2010), a Pennsylvania district court awarded The Winebrake Law Firm $73,195 in attorney’s fees and $2,871.78 in costs after a jury trial in which less than $20,000 was awarded to Philadelphia landscaping employees who alleged that they performed off-the-clock work. In Oliva v. J.T.T. Enterprises Corp., 2010 U.S. Dist. LEXIS 88043 (D. Md. Aug. 25, 2010), a Maryland district court awarded $84,058 in attorney’s fees and $12,534.35 in costs after a jury trial in which 5 of the 8 plaintiffs recovered no damages and less than $5,000 was awarded to the remaining 3 plaintiffs. Tags: FLSA attorney's fees; proportional attorney's fees; Pennsylvania landscaping employees; Pennsylvania landscaping workers; landscaping overtime violations; landscaping wage violations; Maryland overtim ---------------------------------------------------------------------------------------- Sixth Circuit Makes Some Important Observations About FLSA Collective Actions August 24th, 2010 I recently re-read the Sixth Circuit’s decision in O’Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567 (6th Cir. 2009), and was struck by some of the important observations it makes about the FLSA’s collective action device. Reviewing the district court’s “second-stage” decertification of an FLSA class, the Sixth Circuit (which covers Kentucky, Ohio, Michigan, and Tennessee) made the following observations, all of which are useful to plaintiffs-side FLSA lawyers. Firsr, the Court recognized that the FLSA decertification analysis is less stringent than the Rule 23 class action analysis. See 575 F.3d at 584-85. Second, the court observed that FLSA classwide proof often can be proven through representative testimony. In particular, “it is possible that representative testimony from a subset of plaintiffs could be used to facilitate the presentation of proof of FLSA violations, when such proof would ordinarily be individualized.” Id. at 585. Third, the court endorsed the use of subclasses in FLSA collective actions, observing that “a district court should examine whether partial decertification is possible, when faced with a situation where a subset of the plaintiffs fail to allege violations of of the FLSA.” Id. at 586. Fourth, the court summarized the public policy behind FLSA collective litigation, recognizing that “the collective action serves an important remedial purpose” by enabling a “plaintiff who has suffered only small monetary harm [to] join a larger pool of similarly situated plaintiffs.” Id. at 586. In sum, O’Brien is an important for Ohio, Michigan, Kentucky, and Tennessee overtime lawyers/attorneys. Tags: FLSA decertification, FLSA. FLSA collective actions, Kentucky overtime attorney, Kentucky overtime lawyer, Michigan overtime attorney, Michigan overtime lawyer, Ohio overtime attorney, Ohio overtime lawyer, Sixth Circuit, Tennessee overtime attorney, Tennessee overtime lawyer ---------------------------------------------------------------------------------------- Another Conditional Certification Victory for Drug Store Managers August 16th, 2010 Managers and Assistant Managers are on a roll when it comes to obtaining conditional certification of claims that they have been misclassified as exempt under the FLSA’s executive exemption. Most recently, Southern District of New York Judge Paul A. Crotty conditionally certified the FLSA claims of Assistant Store Managers employed by the CVS drug store chain. The decision appears at Cruz Hook-SuperX, L.L.C., 2010 U.S. Dist. LEXIS 81021 (S.D.N.Y. Aug. 5, 2010). Judge Crotty observed that, at the conditional certification stage, plaintiff’s burden to establish that other employees are similarly situated is “minimal” and merely requires a “modest factual showing.” The Judge also observed that the public policy underlying the collective action device favors conditional certification: “This Circuit reads [sec.] 216(b) as permitting, rather than prohibiting, the sending of notice to similarly situated individuals.” The Judge — like so many other judges — also rejected the company’s arguments that “variances” in the plaintiffs’ job duties defeated conditional certification, observing that “[a] fact intensive inquiry . . . is inappropriate at the notice stage.” In this regard, the Judge cited to numerous conditional certification decisions involving allegedly misclassified drug store managers. Finally, the Judge rejected as premature the company’s attempt to strike various Rule 23 class action claims arising under the Massechusetts, Michigan,Pennsylvania, New Jersey, New York and North Carolina overtime laws. Tags: CVS overtime, drug store manager overtime, drug store managers, FLSA, misclassified drug store managers, New Jersey overtime law, New York overtime law, obertime, Pennsylvania overtime law, retail managers, retail overtime ---------------------------------------------------------------------------------------- Store Manager Defeats Summary Judgment in FLSA Misclassification Lawsuit Against Dollar General August 15th, 2010 I just read an especially thoughtful opinion by Judge Catherine D. Perry of the United States District Court for the Eastern District of Missouri in an FLSA misclassification lawsuit entitled Kanatzer v. Dolgencorp, Inc., 2010 U.S. Dist. LEXIS 67798 (E.D. Missouri July 8, 2010). The decision is important in two respects. First, the Court finds disputed facts concerning the issue of whether plaintiff, a Dollar General Store Manager was properly classified as an FLSA-exempt “executive.” Applying the four factors described in 29 C.F.R. 541.700(a), the Court emphasized the common-sense notion that the amount of time a supposed “executive” spends performing non-exempt duties such as working the cash register, assisting customers, and performing other “hourly” tasks really DOES matter under the misclassification analysis. Second, the Court rejected Dollar General’s argument that, in calculating damages, plaintiffs’ economic expert was required to utilize the fluctuating workweek method (“FWM”) of overtime compensation. Here, the Court emphasized that the FWM cannot be applied retroactively since, among other reasons, the method requires that the employee actually received overtime pay. This opinion will provide guidance to retail employees seeking to vindicate their overtime rights. Tags: Dolgencorp, Dollar General, exempt manager, FLSA, overtime, Pennsylvania overtime rights, Pennsylvania retail, retail, retail employees, retail managers, Store Manager ---------------------------------------------------------------------------------------- Federal Court Rules that FedEx Drivers are Misclassified as Independent Contractors June 4th, 2010 On May 28, 2010, United States District Judge Robert L. Miller, Jr. of the USDC for the Northern District of Indiana issued an important opinion in the multi-district litigation entitled In re FedEx Ground Package System, Inc. Employment Practices Litigation, 3:05-md-00527-RM (N.D. Ill.). In patricular, the court issued summary judgment against FedEx on the issue of whether Illinois drivers working for FedEx Ground and FedEx Home Delivery are properly classified as independent contractors (rather than employees) under the Illinois overtime law. FedEx claimed that the drivers were not entitled to overtime pay under the state law because they were independent contractors. The Court disagreed, explaining that, under Illinois law, the drivers are employees because their day-to-day activities are deeply integrated into FedEx’s business operations. Thus, the drivers are entitled to overtime pay. Obviously, this is an important decision for Illinois overtime lawyers. Tags: overtime rights of independent contractors; overtime rights of drivers; Illinois overtime attorneys; Illinois overtime lawyers ---------------------------------------------------------------------------------------- Seventh Circuit Issues an Important FLSA Certification Decision May 21st, 2010 On May 21, 2010, the Seventh Circuit Court of Appeals issued an important decision for overtime lawyers who represent workers in collective actions. In Alvarez v. City of Chicago, No. 09-2021 (7th Cir. May 21, 2010), Chicago paramedics alleged that their overtime pay was miscalculated as a result of approximately ten distinct payroll policies. The individual paramedics who joined the case were subjected to different combinations of the allegedly illegal policies and, for this reason, the district court decertified that FLSA class as “hopelessly heterogenous.” The Circuit Court reversed and, in doing so, made some very important observatrions. First, the Court emphasized the propriety of forming subclasses in FLSA collective actions. Second, the Court clarified that, in the wake of decertification, the claims of opt-ins cannot be dismissed with prejudice because the opt-ins have an unambiguous right to to file individuals lawsuits. The Court observed: “When a collective action is decertified, it reverts to one or more individual actions on behalf of the named plaintiffs.” Third, tying the first two principals together, the Court observed that, in considering decertification, the choice is not between a collective trial or no trial at all. Rather, the choice is between collective litigation or many individual lawsuits. The Court observed: “[I]f it appears plaintiffs are prepared to proceed individually or through separate classes, the district court must consider whether these other mechanisms for judicial resolution are more or less efficient than a collective action comprised if various subclaims.” Tags: Pennsylvania Overtime Lawyers; FLSA collective actions; paramedic ocertime rights ---------------------------------------------------------------------------------------- Third Circuit Issues Two Opinions Finding that Pharmaceutical Sales Representatives are FLSA-Exempt Under the Administrative Exemption March 28th, 2010 Overtime lawyers and attorneys in Pennsylvania, New Jersey, and Delaware should be aware of two recent Third Circuit holdings that pharmaceutical sales representatives fell within the FLSA’s administrative exemption to overtime coverage. In the first decision, Smith v. Johnson and Johnson, 593 F.3d 280 (3d Cir. 2010), the court emphasized that it was not adopting a per se rule that pharmaceutical sales representatives can never fall outside of the exemption. See 593 F.3d at 293 n.1. The court then concluded, based on the underlying factual record, that the plaintiff was exempt based on her own admissions during deposition that she exercised significant discretion and independent judgment. After reading the opinion, one is left puzzled as to why this plaintiff thought she could win an appeal. In the second case, Baum v. Astrazeneca, 2010 U.S. App. LEXIS 6047 (3d Cir. Mar. 24. 2010), the court affirmed the grant of summary judgment against another pharmaceutical sales rep after observing that her duties “were very similar to the palintiff’s duties in Smith.” As usual, bad facts make bad law. Tags: administrative exemption, Delaware overtime lawyers, FLSA, New Jersey overtime lawyers, Pennsylvania overtime lawt=yers, pharmaceutical sales representative ---------------------------------------------------------------------------------------- Supreme Court Grants Writ of Certiorari in Overtime retaliation Lawsuit March 28th, 2010 On March 22, the US Supreme Court agreed to review the Seventh Circuit’s decision in Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d 310 (7th Cir. 2009). In Kasten, the Seventh Circuit held that the FLSA’s anti-retaliation provision, 29 U.S.C. sec. 215(a)(3) does not protect employees who are retaliated against after they make a verbal — rather than a written — wage or overtime complaint to company management. The Seventh Circuit’s opinion contradicts the holdings of other circuit and district courts and, was criticized by three Seventh Circuit judges (Rovner, Wood, and Williams) in a strongly worded dissent from the from the petition for en banc review. See 585 F.3d 310 (7th Cir. 2009). Tags: overtime, retliation, wage ---------------------------------------------------------------------------------------- Some District Court Decisions Rejecting Companys’ Argument thatCFLSA Consent Forms Should Signed Under Penalty of Perjury February 10th, 2010 In their never-ending quest to beat down FLSA opt-in rates, corporate defendants sometimes argue that opt-in consent forms should require the employee to fill-in various employement information (such as dates of employment) and then swear, under penalty of perjury, that such information is correct. Our firm recently encountered this tactic in a case involving the overtime rights of assistant store managers. Of course, these requirements serve no purpose other than to discourage opt-in patricipation. Here’s some cases that Pennsylvania overtime lawyers (and other overtime attorneys) can cite to in opposing the company’s insistance that opt-in forms must be sworn out under oath: Delaney v. Geisha NYC, LLC, 261 F.R.D. 55, 59-60 (S.D.N.Y. 2009); Romero v. Flaum Appetizing Corp., 2009 U.S. Dist. LEXIS 80498, *19-21 (S.D.N.Y. Aug. 17, 2009); Gieskeke v. First Horizon Home Loan Corp., 2006 U.S. Dist. LEXIS 76732, *6 (D. Kan. Oct. 11, 2006). Tags: opt-in forms; FLSA; Pennsylvania overtime lawyers; Pennsylvania overtime attorneys ---------------------------------------------------------------------------------------- Looking Back at Some Good Passages from Falcon v. Starbucks January 14th, 2010 Defendants opposing FLSA collective litigation often argue that collective litigation us unwarranted because (i) low employee participation rates demonstrate that all is well in the workplace and (ii) the case is just too big and complicated to proceed as a collective action. I recently reread a great opinion – Falcon v. Starbucks Corp., 580 F. Supp. 2d 528 (S.D. Tx. 2008) – in which Judge Keith Ellison cogently addressed each of these arguments. Here’s what the Judge had to say about low opt-in rates: “Nor is the Court persuaded by Defendants’ argument that the relatively small response to Plaintiff’s notice justifies decertification because it suggests that there is no general policy or plan. Individuals may have myriad reasons for not wishing to opt-in to a lawsuit against their employer ranging from fear of retaliation to sheer inertia, and the Court declines to draw any particular inference from the response size.” Id. at 538. And here is what he said about the “bigness” argument: “there is no indication that Congress intended section 216 to only allow small collective actions involving unpaid overtime to proceed.” Id. at 540; See also Donahue v. Francis Services, Inc., 2004 U.S. Dist. LEXIS 11525 (E.D. La. June 22, 2004) (“[a]dopting defendants’ reasoning would lead to the absurd result that employers could escape FLSA liability by making sure to underpay vast numbers (rather than smaller numbers) of their employees.”). Some helpful references from Texas for all us overtime rights lawyers! Tags: FLSA collective litigation; overtime rights; overtime rights lawyers; overtime rights attorneys; opt-in participation rates |
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