Companies opposing conditional certification in FLSA overtime cases often argue that, even if conditional certification is granted and notice is issued to the class, the notice mailing should be limited to class members who have been employed within two – rather than three – years from the notice date.  This argument is premised on the fact that, under the FLSA, a three-year limitations period applies only if the company engaged in a “willful” violation of the FLSA.  This argument frequently is rejected by district courts.  As recently explained by Judge Thomas Vanaskie of the United States District Court in Scranton, Pennsylvania, FLSA notice forms should be based on the three-year limitations period because the question of the company’s “willfulness” is a merits issue that is not properly before the court at the conditional certification stage.  See Gallagher v. Lackawanna Cty., 2008 U.S. Dist. LEXIS 43722, *30-31 (M.D. Pa. May 30, 2008).  This approach is consistent with the overwhelming majority cases, including the following decisions from district courts in Connecticut, Arkansas, Missouri, California, and Pennsylvania.  See, e.g., Neary v. Metro. Prop. & Cas. Ins. Co., 517 F. Supp. 2d 606, 623 (D. Conn. 2007); Resendiz-Ramirez v. P&H Forestry, LLC, 515 F. Supp. 2d 937, 942 (W.D. Ark. 2007); Fast v. Applebees Int’l, Inc., 2007 U.S. Dist. LEXIS 44365, *12-13 (W.D. Mo. June 19, 2007); Agdipa v. Grant Joint Union High Sch. Dist., 2007 U.S. Dist. LEXIS 26506, *7 (E.D. Cal. Apr. 10, 2007); Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 484 (E.D. Cal. 2006); Chabrier v. Willmington Finance, Inc., 2006 U.S. Dist. LEXIS 90756, *11 (E.D. Pa. Dec. 13, 2006).

When companies oppose FLSA conditional certification motions in collective actions seeking unpaid overtime, they often argue that the proposed FLSA class is not “similarly situated” because the class members work in different departments of the plant or work at different job sites.  These arguments generally are intended to scare the court into believing that that collective litigation would be unmanageable.

In response to the above argument, Trial Lawyers should argue, among other things, that “subclassing” often enables the trial judge to efficiently manage FLSA classes consisting of different groups of class members.  Below, you will find citations to decisions in which the district court recognized the benefits of subclassing in granting FLSA conditional certification motions.  The decisions arise out of district courts in Texas, Illinois, Kansas, New York, Mississippi, Kentucky, Virginia, Pennsylvania, and Colorado.

Ryan v. Staff Care, Inc., 2007 U.S. Dist. LEXIS 49060, *13 n.3 (N.D. Tex. July 6, 2007) (while differences in employees’ pay classifications might demonstrate “the need for subclassing in this case,” such differences did not warrant denial of conditional certification) (more…)

It was a busy quarter for issuing opinions in FLSA collective actions by federal district courts within the Fifth Circuit.  These opinions touched on a number of different compensation related issues, from tip sharing to conditional certification of classes alleging that they worked off-the-clock.  Below is a brief summary of each of the opinions issued from March 16, 2008 through June 15, 2008 that concern FLSA collective actions. (more…)

Each quarter, our FLSA Mythbuster (identity and whereabouts still unknown) visits Corporate America’s Land of Make-Believe to uncover common workplace rules that violate the FLSA.  Today’s column emanates from Hazleton, Pennsylvania, where The Boss has instructed his low wage employees that working beyond the scheduled 40 hour workweek generally is not permitted and that no one will be paid for “unauthorized” overtime.  Of course, The Boss almost never “authorizes” overtime, even though (i) the employees cannot possibly complete their assigned work within a 40 hour workweek and (ii) everyone, including The Boss and his middle managers, knows that the employees routinely work in excess of 40 hours.

The Boss is violating the FLSA.  Department of Labor regulations clearly require that:

Work not requested but suffered or permitted is work time.  For example, an employee may voluntarily continue to work at the end of the shift.  He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records.  The reason is immaterial.  The employer knows or has reason to believe that he is continuing to work and the time is working time.

29 CFR § 785.11.  Moreover, under DOL regulations, The Boss – not the employee – is responsible for ensuring that “unauthorized” work is not tolerated.  In, particular:

In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed.  It cannot sit back and accept the benefits without compensating for them.  The mere promulgation of a rule against such work is not enough.  Management has the power to enforce the rule and must make every effort to do so.

29 CFR § 785.113.  Put differently – and as recognized by several federal courts – overtime pay is due whenever The Boss has either “actual or constructive knowledge” of the overtime work.  See Barvinchak v. Indiana Regional Medical Center, 2007 U.S. Dist. LEXIS 72805, * (W.D. Pa. Sept. 28, 2007).  Moreover, The Boss’s knowledge “is measured in accordance with his duty to inquire into the conditions prevailing in his business.”  Reyna v. Conagra Foods, Inc., 2006 U.S. Dist. LEXIS 89690, *13 (M.D. Ga. Dec. 11, 2006) (quoting Reich v. Dep’t of Conservation & Natural Resources, 28 F.3d 1076, 1082 (11th Cir. 1994)).

In sum, ignorance should not be bliss for greedy employers who implement “unauthorized overtime” rules in violation of the FLSA.

Pennsylvania employment lawyers and labor lawyers often ask me about the extent to which unionized workers are protected by the FLSA. The short answer is that the FLSA covers unionized workers so long as the overtime dispute is grounded in the FLSA rather than the collective bargaining agreement.
The following text is adopted from a legal brief I recently filed in the United States District Court in Scranton, Pennsylvania. In that case, I represent a group of unionized prison guards who allege that their employer, Lackawanna County, has violated the FLSA by failing to pay them for time spent attending mandatory, pre-shift meetings. I hope this excerpt will help Pennsylvania employment lawyers and Pennsylvania overtime attorneys in their quest to protect the overtime rights of all workers, including those in unions.
In Barrentine v. Arkansas-Best Freight System, 450 U.S. 728 (1981), unionized truck drivers brought a federal court lawsuit alleging that their employer violated the FLSA by failing to pay them for time spent “conduct[ing] a safety inspection of their trucks before commencing any trip” and for time spent “transport[ing] any truck failing such inspection to [the company’s] on-premesis repair facility.” Id. at 730. The employer asserted that a contractual grievance process prohibited thedrivers from pursuing the FLSA claims in federal court. The Supreme Court disagreed. (more…)

On April 4, 2008, a federal district judge in Philadelphia, Pennsylvania issued an important opinion in Chabrier v. Wilmington Financial, Inc., 2008 U.S. Dist. LEXIS 27761 (E.D. Pa. Apr. 4, 2008).  Chabrier is typical of many FLSA lawsuits that have been filed on behalf of loan officers in recent years.  In these lawsuits, the loan officers — who usually are paid on a commission basis – allege that they are entitled to overtime pay, while the mortgage or financial company asserts that the loan officers are exempt from FLSA coverage under either the administrative exemption or the outside salesperson exemption.  In Chabrier, the action was “conditionally certified” as an FLSA collective action and, after notice forms were sent to prospective class members, number loan officers joined the lawsuit as plaintiffs.  Discovery ensued and, at the close of discovery, the company sought to “decertify” the collective action, citing to purported diffences in the individual loan officers’ employment circumstances.  The district court disagreed, observing that all of the class members were paid under the same compensation package, shared the same job title, job duties, and job descriptions, and were supervised by the same managers.  The court reaffirmed the well-accepted principle that the FLSA does not require workers seeking overtime on a collective casis to share identical circumstances.  The court observed:  “A showing that there are elements of plaintiffs’ claims that differ, or that a small number of current plaintiffs are excluded, cannot override the similarities present in most plaintiffs’ claims and circumstances.”    

On April 9, 2008, the United States District Court for the Middle District of Florida denied summary judgment in Saphos v. Gross Pointe Development Company, Inc., 2008 U.S. Dist. LEXIS 29182 (M.D. Fla. Apr. 9, 2008).  In this case, the employee complained that her company failed to pay her overtime for hours spent attending evening events outside of her regular work hours.  The employee alleged that she was required to attend these events at the direction of her supervisor.  The company countered that the events were “public and charitable” events that the employee attended voluntarily.  The federal court rejected the company’s argument.  Discussing the DOL’s regulation pertaining to the compensability of “public and charitable” events (29 C.F.R. 785.44), the court explained that there are “three scenarios” in which employees must be paid for time the spend at off-site events:  (1) where attendance is requested by the employer; (2) where the event is subject to the employer’s discretion or control; or (3) where the employee is normally required to be on the premesis of the event.  Since the jury could find one of these scenarios to be satisfied, summary judgment was denied.  The employee will get her day in court.