Tag Archives: Unpaid Wages

Two Boca Raton Business Owners Accused Of Slavery Plead Guilty, Palm Beach Post Reports

The Palm Beach Post reports that:

“Two Boca Raton business owners accused of pressing Filipino workers into slavery pleaded guilty to federal criminal charges, the U.S. Justice Department announced today.

Sophia Manuel, 41, and Alfonso Baldonado Jr., 45, owners of Quality Staffing Services Corporation, pleaded guilty to conspiring to hold 39 Filipino nationals in compelled service at country clubs and hotels in South Florida, a Justice Department news release stated. A sentencing date is pending.

Manuel also pleaded guilty to making false statements to the U.S. Department of Labor in an application to obtain foreign labor certifications and visas, the release stated.

Manuel and Baldonado pressed the Filipino nationals into work for little or no pay, forced them to sleep on kitchen and garage floors, fed them rotten vegetables and chicken innards, and threatened to have them deported, according to court documents.”

To read the entire article, click here.

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D.Kan.: “A & P Mechanic” Was Non-Exempt; Learned Professional Exemption Was Inapplicable, Because Plaintiff’s Work Was Routine Mechanical Work

Dressler v. Kansas Copters and Wings, Inc.

This decision was rendered following a bench trial.  Plaintiff an “A&P Mechanic” sought unpaid overtime pursuant to the Fair Labor Standards Act (“FLSA”).  The Defendant asserted that Plaintiff was exempt from overtime under the professional exemption.  Rejecting Defendant’s assertions, the Court ruled that Plaintiff was not professionally exempt, because his job duties did not meet any of the duties requirements for the application for such exemption.

Reciting its findings of fact, the Court stated:

“Plaintiff David Dressler is a certified A & P mechanic. After graduating from high school, plaintiff joined the United States Marine Corps. For five years, plaintiff worked as an aviation hydraulics mechanic in the Marines. Plaintiff then worked several years as a dental assistant. In January 2005, plaintiff enrolled in the Aviation Institute of Maintenance. Plaintiff obtained his A & P certification in August 2006. Plaintiff was then employed by Midwest Corporate Aviation and Wells Aircraft. On March 15, 2008, plaintiff applied for a position with Kansas Copters & Wings, Inc.

Kansas Copters is a factory authorized dealer and service center for the Robinson R22 helicopter. The president of the company, defendant Earl Schreiber, decided to offer plaintiff a position because of plaintiff’s experience with helicopters in the military and his education. On March 21, plaintiff signed an employment agreement with Kansas Copters. Plaintiff additionally signed a non-compete agreement in which he agreed to not accept employment for any company that offers the same services as defendants.

The employment agreement states in pertinent part:

Your primary function would be to work as an A & P mechanic. All of our employees are responsible for facility maintenance and janitorial duties…. You may be required to work on your days off and/or holidays from time to time. You will be required to travel and attend courses as needed by the company.

Should you terminate your employment we require a thirty (30) day advance notice. Any notice of less than thirty (30) days and/or employment of less than three years would require for you to reimburse the company(s) any funds spent on your training, attending courses, and any other expenses …

As such, the starting salary for this overtime exempt position considering your qualifications is $600.00 per week … Compensatory time is earned hour for hour for every hour in excess of Sixty (60) hours per work week…. The company(s) reserve the right to withhold compensatory time and/or regular pay, and/or vacation time and/or holiday pay in the amount equal to what the company(s) have paid for aforementioned training and expenses, etc., until you have served at least three (3) years continued employment.

Earl Schreiber drafted the employment agreement after consulting with his attorney. Schreiber determined that an A & P mechanic at his company would be exempt from the overtime provisions in the FLSA due to the specialized training and unique services offered by defendants. In making his determination, Schreiber researched the issue of overtime by reviewing brochures from the federal government and browsing the internet. Schreiber also contacted other businesses which contracted with Robinson aircraft. Schreiber learned that these businesses also paid their mechanics a weekly rate. Schreiber therefore determined that the position of an A & P mechanic would be exempt from overtime.

Plaintiff’s work at Kansas Copters was supervised by Laurence Schreiber, who was also an A & P mechanic. Plaintiff was required to perform routine maintenance on Robinson helicopters. Plaintiff was also required to diagnose issues that arose with Kansas Copters’ customers’ aircraft for non-scheduled maintenance. Plaintiff would adjust flight control surfaces, make repairs and adjustments to the engine, and replace parts. Plaintiff would then certify whether the aircraft was safe for flight. In addressing and diagnosing problems, plaintiff would review the flight history and utilize the manuals that were specific to the aircraft. Plaintiff did not deviate from the manuals. Plaintiff did not modify the flight systems and he was not hired to design modifications to the aircraft.

In addition to making repairs at the airport in Augusta, plaintiff was also expected to service Robinson helicopters at other locations. On one occasion during his employment, plaintiff traveled to Nebraska to make repairs on a Robinson helicopter. Plaintiff was also required to perform maintenance on the facility. Plaintiff would clean the floors, paint the hangar and pull weeds. All employees at Kansas Copters were required to assist in the upkeep of the facility. Plaintiff was required to do this type of work when he was not working on a helicopter.

Plaintiff’s work schedule initially required him to work from 8 a .m. to 5 p.m., Monday through Friday. Plaintiff then attended the Robinson Training Course in California during the week of May 11. After returning from the course, plaintiff was certified to work on Robinson helicopters. Plaintiff then began working on Saturdays for eight hours in addition to his regular forty-hour work week. Plaintiff’s compensation rose to $625 a week due after successful completion of the training course.

Plaintiff’s last day of employment with Kansas Copters was August 20, 2008. Instead of issuing plaintiff his final check in the amount of $625, Kansas Copters withheld plaintiff’s pay for reimbursement for the Robinson course.”

Determining that Plaintiff was not professional exempt, the Court reasoned:

“To qualify for the learned professional exemption, an employee’s primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. This primary duty test includes three elements:

(1) The employee must perform work requiring advanced knowledge;

(2) The advanced knowledge must be in a field of science or learning; and

(3) The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

29 C.F.R. § 541.301(a).

First, in determining whether the initial element is met, the court is guided by the definition set forth in the regulations:

The phrase “work requiring advanced knowledge” means work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work. An employee who performs work requiring advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level.  29 C.F.R. § 541.301(b).

The testimony in this case established that plaintiff performed his position as an A & P mechanic in strict compliance with guidelines set forth by the manufacturer. Plaintiff could not deviate from the design of the helicopter or make any modifications without specific input from the manufacturer. Plaintiff’s work was routine and he worked on the same type of aircraft. The court finds that plaintiff’s work was not predominantly intellectual in character. Plaintiff’s work was routine mechanical work and therefore does not qualify for the learned professional exemption.

Even if the court were to find that the first element was met, the final two elements have not been proven. The second element is as follows:

The phrase “field of science or learning” includes the traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy and other similar occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades where in some instances the knowledge is of a fairly advanced type, but is not in a field of science or learning.  29 C.F.R. § 541.301(c).

Clearly, an aircraft mechanic does not fall into the traditional professions listed in the regulation. Defendants cite Paul v. Petroleum Equip. Tools Co., 708 F.2d 168 (5th Cir.1983) to support the position that pilots have been found to qualify for the professional employee exemption. In Paul, the court determined that flying is a field of science or learning because the pilot “must acquire extensive knowledge of aerodynamics, airplane regulations, airplane operations, instrument procedures, aeronautical charts, and weather forecasting.” 708 F.2d at 173. Plaintiff, however, is not a pilot. Plaintiff’s knowledge is not similar to what is required of a pilot. Plaintiff’s learning is of a mechanical nature and that is excluded by the regulation.

The final element has also not been met. The regulations explain the element as follows:

The phrase “customarily acquired by a prolonged course of specialized intellectual instruction” restricts the exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession. The best prima facie evidence that an employee meets this requirement is possession of the appropriate academic degree. However, the word “customarily” means that the exemption is also available to employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction. Thus, for example, the learned professional exemption is available to the occasional lawyer who has not gone to law school, or the occasional chemist who is not the possessor of a degree in chemistry. However, the learned professional exemption is not available for occupations that customarily may be performed with only the general knowledge acquired by an academic degree in any field, with knowledge acquired through an apprenticeship, or with training in the performance of routine mental, manual, mechanical or physical processes. The learned professional exemption also does not apply to occupations in which most employees have acquired their skill by experience rather than by advanced specialized intellectual instruction. 29 C.F.R. § 541.301(d).

While plaintiff clearly gained his education from technical school and Marine Corps experience, advanced education is not required in order to gain FAA certification. Plaintiff’s short course of training with the manufacturer of Robinson helicopters does not amount to a prolonged course of specialized intellectual instruction. Defendants have again cited cases which deal only with pilots. Plaintiff is not a pilot. The language in the regulation contemplates that some individuals may qualify for the exemption without formal education but then cites rare examples of occupations which routinely required advanced education. The examples cited are clearly those professions which are highly intellectual in nature and not mechanical, like that of an A & P mechanic.

The court finds that plaintiff’s position as an A & P mechanic is not exempt under § 213(a)(1) because he does not qualify as a professional.”

To read the entire decision, click here.

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2d. Cir.: Question Of Joint Employer Is Mixed Question Of Law And Fact, Properly Submitted To The Jury

Ling Nan Zheng v. Liberty Apparel Co. Inc.

Plaintiffs-appellees were 25 Chinese garment workers living and working in New York City’s Chinatown. In 1999, they sued Liberty Apparel Company and its principals Albert Nigri and Hagai Laniado (collectively, “the Liberty Defendants”), and others, for violations of the Fair Labor Standards Act (“FLSA”), and the New York Labor Law (“NYLL”). After a lengthy procedural history, the case went to a jury trial, and the principal issue was whether the Liberty Defendants were plaintiffs’ “joint employer” for purposes of the FLSA and New York state law claims.

The Liberty Defendants appealed that judgment.  In this opinion, the Second Circuit considered Defendants’ contention that the district court-rather than the jury-should have determined whether the Liberty Defendants were plaintiffs’ joint employer.  And on that issue, they affirmed.  The substantive law regarding the joint employment issue was discussed in a separate opinion.

After a lengthy procedural history, the defendants removed for summary judgment, and on May 23, 2008, Judge Sullivan denied that motion. Zheng v. Liberty Apparel Co., 556 F.Supp.2d 284, 287 (S.D.N.Y.2008) (“Zheng III ”). The court determined that, while there was no genuine issue of fact that the first, second, and fourth Zheng II factors weighed in the Liberty Defendants’ favor, there was a dispute of fact regarding factors three, five, and six. Id. at 289-95. On February 11, 2009, after a two-and-a-half week trial, the jury found in plaintiffs’ favor. The court denied the Liberty Defendants’ post-verdict motions to set aside the verdict and for a new trial. By final judgment entered October 26, 2009, plaintiffs were awarded $556,566.76 in damages.

Discussing the issues on this appeal, the Court framed them as: Whether “(1) the district court improperly allowed the jury to determine the “ultimate legal question” whether the Liberty Defendants were plaintiffs’ joint employer, whereas instead the court itself should have resolved that issue; (2) the district court refused to charge the jury that, as a matter of law, three of the six Zheng II factors weighed in the Liberty Defendants’ favor (to some degree); and (3) as a matter of law, plaintiffs’ evidence was insufficient to support the jury’s finding of joint employment. As to the § 345-a(1) claim, the Liberty Defendants argue that (1) the statute does not authorize a private right of action, and, alternatively, (2) whether it authorizes a private right of action raises a novel and complex issue of state law such that the district court should have declined to exercise supplemental jurisdiction over that claim, see 28 U.S.C. § 1367(c)(1).”

Holding that the Court below had correctly submitted the issue of joint-employment to the jury, the Court reasoned:

“In the context of a jury trial, the question whether a defendant is a plaintiffs’ joint employer is a mixed question of law and fact. Such questions “involve[ ] the application of a legal standard to a particular set of facts.”   Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 437 (2d Cir.1999) (internal quotation marks omitted). “FLSA claims typically involve complex mixed questions of fact and law….” Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 743 (1981); cf. Holzapfel v. Town of Newburgh, N.Y., 145 F.3d 516, 521 (2d Cir.1998).

The jury’s role was to apply the facts bearing on the multi-factor joint employment inquiry to the legal definition of joint employer, as that term had been (properly) defined by the district court in the jury charge. “[M]ixed questions [of law and fact] are ‘especially well-suited for jury determination….’ “ Richardson, 180 F.3d at 437 (quoting Mendell v. Greenberg, 927 F.2d 667, 673 (2d Cir.1990)); see also Kirsch v. Fleet St., Ltd., 148 F.3d 149, 171 (2d Cir.1998); Simms v. Vill. of Albion, N.Y., 115 F.3d 1098, 1110 (2d Cir.1997) (“A mixed question of fact and law may be submitted to the jury only if the jury is instructed as to the applicable legal standards.”).

In the Liberty Defendants’ view, the district court should have provided a special verdict form so that the jury could detail its factual findings regarding the various joint employment factors, and so that the district court could then have applied those findings to make the final determination as to joint employment. But such a rule would distort the jury’s proper role, described above, of applying law to fact. Moreover, requiring the use of a special verdict form would be anomalous in the law, cf. Fed.R.Civ.P. 49(a); Kirsch, 148 F.3d at 171; 9B C. Wright & A. Miller, Federal Practice & Procedure § 2505 (“Wright & Miller”); and appellate courts rarely-if ever-vacate for failure to use a special verdict form, see Skidmore v. Balt. & O.R. Co., 167 F.2d 54, 67 (2d Cir.1948) (“[W]e cannot hold that a district judge errs when, as here, for any reason or no reason whatever, he refuses to demand a special verdict, although we deem such verdict usually preferable to the opaque general verdict.”); Wright & Miller § 2505 (“[A]s numerous courts have held, as evidenced by the many cases cited in the note below, the exercise of th[e trial court’s discretion in using a general rather than a special verdict form] is not likely to be overturned on appeal.”).

The Liberty Defendants’ reliance on language from Zheng II is misplaced. That decision recognized that the joint employment question is a mixed one of law and fact: “Finally, there is the conclusion of law to be drawn from applying the factors, i.e., whether an entity is a joint employer.”   Zheng II, 355 F.3d at 76 (emphasis added); cf. id. at 76 n.13 (noting “[t]he fact-intensive character of the joint employment inquiry”). Moreover, to the extent Zheng II contemplated de novo review of a joint employment determination, it did so only in the context of summary judgment, not a jury trial. De novo review of a jury’s joint employment determination would necessitate use of a special verdict-which, as we explained above, we do not require-and would cause the appellate court to tease apart the interwoven elements of facts and law, a project that would raise serious Seventh Amendment concerns, cf. Castillo v. Givens, 704 F.2d 181, 199 (5th Cir.1983) (Higginbotham, J., concurring)-if it could even be done.

For the foregoing reasons, we hold that the district court properly submitted the joint employment issue to the jury. The judgment of the district court is affirmed, subject to the partial vacatur and remand required by the companion summary order. The mandate shall issue forthwith.”

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CareGroup, Staffers Settle Pay Lawsuit For Up to $8.5 Million, Boston Globe Reports

Today’s Boston Globe reports that:

“Beth Israel Deaconess Medical Center and other CareGroup Inc. affiliates have agreed to settle a class-action lawsuit against the hospital chain that alleges workers were not paid for working through lunch breaks or beyond their scheduled shifts. The settlement, if given court approval, will cover as many as 9,000 current and former CareGroup employees.

CareGroup Inc. and its affiliates — Beth Israel, Beth Israel Deaconess-Needham, Mount Auburn Hospital, and New England Baptist Hospital — will pay up to $8.5 million. The settlement will include payments to cover back wages. CareGroup and its affiliates deny any wrongdoing.”

To read the entire story, click here.

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Arbitrator Rules That Massachusetts Trial Court System Must Pay Workers $30 Million In Retroactive Pay Increases, Boston Herald Reports

The Boston Herald is reporting that an Arbitrator has ruled that Massachusetts’ Trial Court system must pay its clerical workers $30 million in unpaid pay increases.

“In what is being called the costliest settlement of its type in state history, the financially strapped Trial Court system must shell out $30 million in back wages to thousands of unionized clerical workers, the Herald has learned.

In a decision reached May 7, an arbitrator ruled that the Trial Court broke its contract with Office and Professional Employees International Union, Local 6, by refusing to pay the negotiated 3 percent pay raises since 2007…

In addition to the $30 million in back pay, the Trial Court must find $17 million in unfunded raises for the union employees for the next budget year, starting in July, said Superior Court Justice Peter W. Agnes Jr., president of the Massachusetts Judges Conference.”

To read the entire article click here.

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Miami-Dade County Passes New Wage Theft Ordinance, Miami Herald Reports

The Miami Herald reports that Miami-Dade “[c]ounty overwhelmingly passed a new ordinance to combat wage theft, making it easier for workers to bring legal action against employers who fail to pay them.

Thursday’s vote comes after more than a year of work by a non-governmental task force of labor and immigrant advocates in Miami. San Francisco has a similar ordinance. Los Angeles and New Orleans are considering them.”

In addition to recovering the unpaid wages that have been wrongly denied them, workers can recover 2 times that amount in additional damages.  The ordinance will result in a a low-cost administrative process that seeks to speed along claims for workers who have not been properly paid their wages.

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D.Or.: FLSA Supports Award Of Attorney Fees For Post-Judgment Collection Efforts

Van Dyke v. BTS Container Service, Inc.

After plaintiff prevailed in this FLSA case, Judgment was entered for $4,724.29 and a Supplemental Judgment for $35,248.10 in attorney fees and costs.  Due to financial difficulties, Defendants failed to satisfy the judgment, necessitating Plaintiff to garnish certain monies from Defendants to satisfy the judgment.  Before the court was Plaintiff’s Supplemental Motion for Attorney Fees for Post-Judgment Collection.  The Court granted the Motion.

The Court explained, “[u]nder Oregon law, attorney fees to enforce a judgment are “legal services related to the prosecution or defense of an action” which the court may consider when it awards attorney fees. Johnson v. Jeppe, 77 Or.App. 685, 688, 713 P.2d 1090 (1986) (quoting ORCP 68).

The Ninth Circuit has not determined if the Fair Labor Standards Act (“FLSA”) supports the court awarding attorney fees for post-judgment collection efforts. But cf. Jones v. Giles, 741 F .2d 245, 250 (9th Cir.1984) (finding no abuse of discretion in the size of the trial court’s $2,500 award for post-judgment attorney fees in an FLSA case without addressing whether such fees were available under the statute). Federal courts have awarded attorney fees for post-judgment collection efforts in other contexts. See Shaw v. AAA Eng’g & Drafting, Inc., 213 F.3d 538, 544-45 (False Claims Act case); Free v. Briody, 793 F.2d 807, 808-09 (7th Cir.1986) (ERISA case). I conclude that the FLSA also allows me to award post-judgment collection fees. Without such an award, a judgment is a hollow victory for a plaintiff who was improperly paid.”

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