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.

Judge William J. Martini of the United States District Court for the District of New Jersey issued an opinion on July 31, 2009 conditionally certifying the FLSA claims of Liberty travel, Inc. travel agents who seek full overtime wages.  The decision can be found on LEXIS at Bredbenner v. Liberty Travel, Inc., 2009 U.S. Dist. LEXIS 67122 (D.N.J. July 31, 2009).  Therein, the district court rejected Liberty Travel’s claim that any analysis of its use of the Fluctuating Workweek Method (“FWW”) method of overtime calculation involved too many “individualized” issues to justify conditional certification.  Not surprisingly, Liberty Travel’s “individualized issue” argument emphasized the FWW’s “clear mutual understanding” requirement.  The Judge refused to take the bait, reasoning that Liberty’s “clear mutual understanding” argument involved merits issues not properly before the court at the conditional certification stage.  Rather, according to the Judge, what mattered at the conditional certification stage was the fact that Liberty Travel FWW scheme applied to all the travel agents.

This decision comes as no surprise to us at The Winebrake Law Firm.  Several years ago, our overtime attorneys obtained both conditional and second-stage certification in a FWW case on behalf of Ohio and Pennsylvania retail employees seeking full overtime pay from Lowe’s Home Centers, Inc.  The certification decisions can be found at: Evans v. Lowe’s Home Centers, Inc., 2006 U.S. Dist. LEXIS 32104 (M.D. Pa. May 18, 2006); Evans v. Lowe’s Home Centers, Inc., 2004 U.D. Dist. LEXIS 32104 (M.D. Pa. July 17, 2004); and Smith v. Lowe’s Companies, Inc., 2005 U.S. dist. LEXIS 9763 (S.D. Ohio May 11, 2005).