Tag Archives: Preemption

W.D.N.Y.: Common Law Claims Not Preempted To the Extent They Provide a Remedy Not Available Under the FLSA

Gordon v. Kaleida Health

In an unusual procedural posture, this case was before the court on plaintiffs’ motion to remand their state common law claims, based on lack of subject matter jurisdiction.  The court held that it had subject matter jurisdiction however, because of FLSA preemption considerations.  As discussed here, the court held that common law claims seeking to recover straight-time compensation otherwise not covered under the FLSA are not preempted by the FLSA.

Discussing the issue the court reasoned:

“In many district court cases where this issue has arisen, the plaintiffs’ common law claims were brought in conjunction with FLSA claims, based on the same facts, and seeking the same relief. In such cases, most courts have had no trouble dismissing the common law claims as preempted to the extent recovery is available under the FLSA, even where the plaintiff also brought wage claims under a parallel state statute. See, e.g., Guensel v. Mount Olive Bd. of Educ., Civ. No. 10–4452, 2011 U.S. Dist. LEXIS 132102, at *19, 2011 WL 5599717 (D.N.J. Nov. 16, 2011) (common law claims that are “directly covered” by FLSA must be brought under the FLSA); DeMarco v. Northwestern Mem. Healthcare, Civ. No. 10–C–397, 2011 U.S. Dist. LEXIS 88541, at *17–18, 2011 WL 3510905 (N.D.Ill. Aug. 10, 2011) (unjust enrichment and other state common law claims seeking relief available under the FLSA are preempted); Bouthner v. Cleveland Constr., Inc., Civ. No. RDB–11–244, 2011 U.S. Dist. LEXIS 79316, at *21–22, 2011 WL 2976868 (D.Md. July 21, 2011) (although common law claim made no reference to FLSA, it was preempted where claim sought wages mandated by FLSA).

Two courts in this Circuit have expressly concluded that common law claims are preempted to the extent they seek recovery available under the FLSA, but are not preempted to the extent that state law provides a remedy not available under federal law. DeSilva v. N. Shore–Long Island Jewish Health Sys., 770 F.Supp.2d 497, 532–33 (E.D.N.Y.2011) (finding common law claims preempted by FLSA to extent they sought overtime wages, but not preempted to extent they sought straight-time pay not available under the FLSA); Barrus v. Dick’s Sporting Goods, Inc., 732 F.Supp.2d 243, 263 (W.D.N.Y.2010)  (dismissing common law claims seeking unpaid overtime as preempted by FLSA, but allowing claim for unpaid straight time wages to go forward). Other district courts have held likewise. See, e .g., Monahan v. Smyth Auto., Inc., No. 10–CV–00048, 2011 Dist. LEXIS 9877, at *9–11, 2011 WL 379129 (S.D. Oh Feb. 2, 2011) (unjust enrichment claim not preempted where it was based on alleged failure to pay the state’s minimum wage, which was higher than FLSA minimum wage rate); Mickle v. Wellman Prods. LLC, No. 08–CV–0297, 2008 U.S. Dist. LEXIS 63697, at *10–11, 2008 WL 3925266 (N.D.Okla.2008) (while state statute created a distinct cause of action for overtime compensation, the plaintiffs’ common law claim seeking such relief was duplicative of remedies provided by the FLSA and was preempted).

The law on this issue is by no means settled—some courts have declined to find common law claims preempted where a state’s statute incorporates the FLSA’s minimum wage and/or overtime provisions, and others have dismissed entirely common law claims for which the FLSA provides only partial relief. However, I find the foregoing cases from within this Circuit persuasive. As the DiSilva court noted, the FLSA’s savings clause expressly provides that wage and hour actions may be brought under state wage statutes, “it says nothing about a party’s ability to pursue general common law claims that have no specific relevance to the labor law context.” 2011 U.S. Dist. LEXIS 27138, at *93 (emphasis in original).

Here, Plaintiffs common law claims are not brought in conjunction with any claim for relief under the FLSA or the NYLL. They refer generally to statutory law only as the basis for calculating damages. This vague reference to “state law” is not enough to draw purely common law claims into the ambit of the FLSA’s savings clause. Accordingly, to the extent Plaintiffs are seeking unpaid overtime wages that are available under the FLSA, their common law claims are preempted, and to the extent they are seeking straight-time wages for which no federal relief is available, they are not.”

Click Gordon v. Kaleida Health to read the entire Decision and Order.

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W.D.Ark.: FLSA Does Not Preempt State Common Law Claims; Claims Dismissed On Other Grounds

Montize v. Pittman Properties Ltd. Partnership No.1

This case was before the Court on one of the Defendant’s  Motion for Partial Judgment on the Pleadings filed.  The Plaintiffs did not file any response to the Motion.  Of interest, the Court held that certain non-FLSA state law claims were not preempted by the FLSA.  In so holding, the Court noted its agreement with the Ninth Circuit and disagreement with the Fourth Circuit on this issue.  Nonetheless the claims at issue were dismissed for failure to state a claim, because they failed to allege, with specicificity, the facts on which such claims could rest.

The Court dicussed the following facts (as pled) as relevant to its inquiry:

“In this action, Plaintiffs were migrant agricultural workers employed by Pittman Nursery Corporation for seasonal work. They allege that a former Pittman Nursery employee, Dawood Aydani, extorted money from them over the course of several years, in the form of kickbacks, and that such extortion effectively reduced Plaintiffs’ net compensation below the federal and state minimum wage. Specifically, Plaintiffs allege that Mr. Aydani required Plaintiffs to pay him $1,000 cash to secure and keep their employment. They further allege that these funds were then shared with some of the other Defendants in this action.

Plaintiffs assert causes of action under the Fair Labor Standards Act (“FLSA”), under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and for negligent supervision. Pittman Nursery asks the Court to dismiss the non-FLSA claims and argues that these claims are preempted by the FLSA.”

Discussing the issue of preemption, the Court held: 

“The FLSA authorizes workers to file private actions to recover unpaid wages, damages, costs, and attorneys’ fees. 29 U.S.C. § 216(b). Pittman Nursery argues that, because Congress intended that these remedies be exclusive, duplicative claims seeking damages beyond those established under the FLSA are preempted by federal law. In the present case, Pittman Nursery asserts that the FLSA preempts Plaintiffs’ state law and RICO claims because these claims are duplicative. The Court does not agree.

The Eighth Circuit has not addressed the issue of whether the remedies under the FLSA are exclusive. The Court is aware that the Fourth Circuit has held that the FLSA preempts claims that “depend on establishing that [the employer] violated the FLSA.” Anderson v. Sara Lee Corp., 508 F.3d 181, 193 (4th Cir.2007). Several other district courts outside of the Eighth Circuit have ruled that state claims are preempted by the FLSA where those claims merely duplicate the FLSA claims. Id. at 194. On the other hand, the Ninth Circuit has held that the FLSA does not preempt common law fraud claims and that the FLSA does not provide exclusive remedies for violating its provisions. Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1151-53 (9th Cir.2000). Also, several district court cases within the Eighth Circuit have held that the FLSA does not provide the exclusive remedy for its violations and does not preempt state law claims even when there is a common core of operative facts. See Cortez v. Neb. Beef, Inc., Nos. 8:08CV90, 8:08CV99, 2010 WL 604629 (D.Neb. Feb.16, 2010); Bouaphakeo v. Tyson Foods, Inc., 564 F.Supp.2d 870, 886 (N.D.Iowa 2008); Robertson v. LTS Management Services, LLC, 642 F.Supp.2d 922, 928 (W.D.Mo.2008); Osby v. Citigroup, Inc., No. 07-CV-06085-NKL, 2008 WL 2074102 (W.D.Mo. May 14, 2008). Most district courts in the Eighth Circuit agree that the FLSA’s savings clause, which allows states to enact stricter wage, hour, and child labor provisions, indicates that the FLSA does not provide an exclusive remedy for its violations. Bouaphakeo, 564 F.Supp.2d at 882. In fact, “it would seem that state law may offer an alternative legal basis for equal or more generous relief for the same alleged wrongs.” Cortez, 2010 WL 604629, at *6.

Here, the Court is more persuaded by the opinions of district courts within the Eighth Circuit and adopts the view that the FLSA does not provide an exclusive remedy for violations of its provisions. Accordingly, the Court does not agree with Pittman Nursery that Plaintiffs’ non-FLSA claims are preempted by the FLSA.”

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D.Mass.: Skycaps’ State Law Claims Preempted By Airline Deregulation Act Of 1978 (ADA)

Travers v. JetBlue Airways Corp.

Skycaps, who assist airline passengers with the curbside check-in of their luggage, receive most of their compensation in the form of tips paid by the passengers. The plaintiffs, past and present skycaps for JetBlue Airways Corporation (“JetBlue”), accuse the airline of diverting tip revenue to itself by its imposition of a $2 fee assessed for each bag checked at the curbside (the “curbside check-in fee”). According to the plaintiffs, passengers erroneously believe the $2 fee goes directly to the skycaps because it is cash only, physically collected by the skycaps, and in an amount typically (that is, historically) given as a tip. The plaintiffs allege that the curbside check-in fee has caused their compensation to decrease dramatically because few passengers give a tip in addition to the $2 fee.

The amended complaint asserted claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, the Massachusetts Minimum Wage Law, Mass. Gen. Laws ch. 151, §§ 1, 7, the Massachusetts Tips Law, Mass. Gen. Laws ch. 149, § 152A, and state common law claims for tortious interference with contractual and/or advantageous relations and unjust enrichment/quantum meruit. JetBlue has moved to dismiss all state law claims as expressly preempted by the Airline Deregulation Act of 1978 (“ADA”), 49 U.S.C. § 41713(b) (1), or impliedly preempted by the Federal Aviation Act (“FAA”), 49 U.S.C. § 49191 et seq. Alternatively, JetBlue moves to dismiss the tortious interference and unjust enrichment claims for failure to state a claim.

The Court discussed preemption under the ADA in general stating, “All preemption challenges “ultimately turn[ ] on congressional intent,” Good v. Altria Group, Inc., 501 F.3d 29, 33 (1st Cir.2007), and the “primary indicator of intent is the text of the congressional act claimed to have the preemptive effect,” id. at 34.

The ADA’s preemption provision states: “[A] State … may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier….” 49 U.S.C. § 41713(b)(1) (emphasis added). Relying on the words “related to,” the Supreme Court has emphasized that the ADA expresses a broad preemptive purpose. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992); see Altria Group, Inc. v. Good, 129 S.Ct. 538, 547 (2008) (recognizing the “unusual breadth of the ADA’s preemption provision”). State law claims are “related to” an airline’s prices, routes, or services, and thus preempted, if the state law either, on its face, “explicitly refers to” or, in application, has a “significant effect” on an airline’s prices, routes, or services. Buck v. Am. Airlines, Inc., 476 F.3d 29, 34 (1st Cir.2007); United Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d 323, 335 (1st Cir.2003). On the other hand, state law claims having only a “tenuous, remote, or peripheral” relationship to an airline’s prices, routes, or services are not preempted. Morales, 504 U.S. at 390. Evaluation of this relationship centers “on the effect that the state law has on airline operations,” not on “the state’s purpose for enacting the law.” N.H. Motor Transp. Ass’n v. Rowe, 448 F.3d 66, 78 (1st Cir.2006) (emphasis in original).”

Turning to the facts in the case before it, the Court said, “[t]he question here, therefore, boils down to this: Are the plaintiffs’ state law claims “related to” JetBlue’s prices, routes, or services? The answer seems obvious. The plaintiffs seek to impose liability under the Massachusetts statutory and common law claims for JetBlue’s action in setting (and collecting) a price for a service provided to its customers. To avoid liability under the state claims, JetBlue would have to alter its decisions about its price and services. Potential liability under the state claims, therefore, is a means by which the State effectively regulates JetBlue’s price and service with respect to curbside check-in.

The plaintiffs’ own argument necessarily acknowledges that their claims “relate to” JetBlue’s price for the curbside baggage check-in. They claim not to challenge the existence of JetBlue’s curbside check-in fee, but only the manner in which the fee is collected (i.e., cash-only, by the skycaps, and in an amount typically given as a tip). Two alternatives, which preserve skycap tip income, are proposed by the plaintiffs: JetBlue could charge the $2 fee either when passengers purchase their tickets or during self-check-in, and then list the charges as “baggage handling fees” on the passengers’ receipts. (See Pls.’ Opp’n to Def. JetBlue Airways Corp.’s Mot. to Dismiss 10 n.8.) To propose these two alternatives is to implicitly acknowledge that their state law claims are a vehicle for regulating JetBlue’s assessment and collection of a fee for the curbside check-in service. The question, however, is not whether such regulation would be beneficial or desirable, but whether it is permitted in light of the ADA’s broad preemption of any state regulation of an airline’s “prices” or “services.”

Furthermore, any argument that the state law claims here have no more than a “tenuous, remote, or peripheral” relationship to JetBlue’s prices or services is belied by the plaintiffs’ own complaint. They seek not only money damages for past wrongs, but also injunctive relief “ordering Defendants to cease their violations of the law.”(Am.Compl.10.) Whether indirectly, by threat of liability for money damages, or directly, by injunctive order, the plaintiffs’ broader goal is to compel JetBlue to change its practices with respect to the imposition and collection of the curbside check-in fee. That relationship to JetBlue’s prices and services is not “tenuous, remote, or peripheral.

In sum, the ADA preempts the plaintiffs’ state law claims. The defendant’s Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) ( dkt. no. 46) is GRANTED. Counts II-V of the amended complaint are dismissed as against JetBlue.”

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