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Andrew Frisch

11th Cir.: Arbitration Clause Requiring Fee/Cost Splitting Violates the FLSA

Hudson v. P.I.P., Inc.

This case was before the Eleventh Circuit on the defendant-employer’s appeal of the district court’s denial of its motion to compel arbitration. Specifically, the district court held that the parties’ agreement to arbitrate was unenforceable because the arbitration clause required each party to bear its own attorneys’ fees and costs. The Eleventh Circuit affirmed in part and vacated and remanded in part, so that the district court could decide whether the offending provision could be severed, which the lower court had already held it could not.

Describing the relevant arbitration clauses at issue, the court explained:

Those arbitration clauses provide:Any dispute arising out of this agreement shall be resolved by mediation or arbitration, each party agrees, the parties will equally divide cost of mediation. Each party to any arbitration will pay its own fees and expense, including attorney fees and will share other fees of arbitration. The arbitrat[or] may conduct the hearing in absence of either party. After notified of such hearing. [sic](Emphasis added).

In his R&R, the magistrate judge determined the language of the arbitration provisions plainly prohibited Appellees from recovering their fees and costs, and thus the fees and costs clauses were unenforceable as they contravened the FLSA. The magistrate judge went on to note the arbitration provisions did not contain severability clauses, and that in the absence of a severability clause, the objectionable language could not be severed. Accordingly, the magistrate judge determined the arbitration provisions were unenforceable in their entirety. PIP filed objections to the R&R, arguing the fees and costs clauses merely required the parties to “pay their own way” while the arbitration is proceeding, and that nothing in the ECAs prohibited the arbitrator from shifting the fee if and when the Appellees were determined to be prevailing parties. And, even if the fees and costs clauses were unenforceable, the magistrate judge erred in concluding the “objectionable language could not be severed solely because the arbitration clauses do not contain a severability provision.” PIP asserted that Eleventh Circuit case law does not hold that any arbitration agreement that contains an unenforceable remedial restriction is completely null and void in the absence of a severability clause. Instead, the court is required to determine whether the unenforceable clauses are severable, which is decided as a matter of state law, here the law of Florida. PIP claimed Florida law allowed an unenforceable clause to be severed as long as the unenforceable clause does not go to the essence of the agreement. Thus, PIP asserted, even if the court were to sever the offending clause, there would still be a valid agreement to resolve employment-related disputes through arbitration.The district court adopted the magistrate judge’s R&R and denied PIP’s motion to compel arbitration after concluding the arbitration provisions in the relevant contracts were unenforceable because they denied the Appellees a substantive right under the FLSA—the right to recover fees and costs pursuant to 29 U.S.C. § 216(b). Furthermore, the court concluded that because the arbitration provisions did not provide for severability, the arbitration provisions were unenforceable in their entirety.

On appeal, the Eleventh Circuit affirmed the district court’s holding that the fee/cost splitting provision violated the FLSA. However, it remanded for further decision on whether the offending provision could be severed notwithstanding the absence of a severability clause.

Holding the fee/costs splitting provision to be unenforceable, the court explained:

Appellees contend the arbitration provisions improperly deny them their statutory right to recover fees and costs under the FLSA.The district court did not err in concluding that the statement “[e]ach party to any arbitration will pay its own fees and expense, including attorney fees and will share other fees of arbitration,” does not leave any discretion with the arbitrator to award fees and costs. (Emphasis added). We have held the terms of an arbitration clause regarding remedies must be “fully consistent with the purposes underlying any statutory claims subject to arbitration.” Paladino v. Avnet Comput. Techs., Inc., 134 F.3d 1054, 1059 (11th Cir. 1998). Thus, the clause providing that each party will pay its own fees and costs is unenforceable, as the FLSA allows fees and costs as part of a plaintiff’s award. Id. at 1062 (“When an arbitration clause has provisions that defeat the remedial purpose of the statute, … the arbitration clause is not enforceable.”); 29 U.S.C. § 216(b)… Appellees have met their burden of establishing that enforcement of the fees and costs clauses in the arbitration provisions would preclude them from effectively vindicating their federal statutory rights in the arbitral forum. See id. at 1259. Thus, the district court did not err in concluding the fees and costs clauses are unenforceable.

However, the Court rejected the portion of the district court’s opinion which had held–consistent with Florida law–that the absence of a severability clause rendered the arbitration cause unenforceable in its entirety. As such, it reversed and remanded this issue for further consideration, reasoning:

The district court then reasoned that if the arbitration provisions contained a severability clause, the offending clauses could potentially be severed. Because the ECAs did not contain a severability provision, the court stated the objectionable language could not be severed and determined the arbitration clauses were unenforceable in their entirety.However, we have rejected the proposition that an “arbitration agreement that contains an unenforceable remedial restriction is completely null and void unless it also contains a severability clause.” Terminix Int’l Co., LP v. Palmer Ranch Ltd. P’ship, 432 F.3d 1327, 1331 (11th Cir. 2005). Instead, if a provision is “not enforceable, then the court must determine whether the unenforceable provisions are severable. Severability is decided as a matter of state law.” Id.Our law does not support that an arbitration provision is unenforceable in its entirety if it contains an offending clause and lacks a severability provision. Id. The district court did not go on to the next step to address whether the unenforceable clauses were severable as a matter of Florida law, despite PIP arguing this issue in its objections to the R&R. Thus, we remand to the district court to decide in the first instance the issue of whether the offending clauses are severable under Florida law.

Thus, the Eleventh Circuit affirmed the district court’s conclusion the fees and costs clauses of the arbitration provisions were unenforceable, but reversed the district court’s conclusion the arbitration provisions are unenforceable in their entirety solely because they lack a severability provision, and remanded for the district court to determine whether the fees and costs clauses are severable as a matter of Florida law.

Click Hudson v. P.I.P., Inc. to read the entire Opinion.

9th Cir.: Nevada Waived Sovereign Immunity from FLSA Claims by Removing Lawsuit to Federal Court

Walden v. State of Nevada

This case was before the court on the State of Nevada’s interlocutory appeal, following the district court’s denial of its motion to dismiss on jursidictional grounds.  Addressing an issue of first impression, the Ninth Circuit held that removal from state court to federal court constitutes a waiver of sovereign immunity as to all federal claims, including the FLSA claims at issue here.

In Walden, state correctional officers alleged that the Nevada Department of Corrections improperly failed to pay them for pre- and post-shift work at state prisons and other facilities. They filed suit in state court, alleging minimum wage and overtime claims under the FLSA, in addition to a minimum-wage claim under Nevada’s Constitution, a overtime claim under Nevada law, and a claim for breach of contract.

Nevada removed the case to federal court and moved for judgment on the pleadings with regard to the FLSA claims, and contended that it was “immune from liability as a matter of law.” Nevada did not explicitly mention state sovereign immunity or the Eleventh Amendment, though.

The district court requested briefing on the question whether state sovereign immunity applies to the FLSA claims against the state following its removal of the case to federal court.

The district court held that Nevada had waived its sovereign immunity as to the officers’ FLSA claim by virtue of its removal of the case to federal court, and denied the state’s motion to dismiss.  Nevada filed an interlocutory appeal to the Ninth Circuit.

While the particular issue at bar was one of first impression, the Ninth Circuit looked to other cases in which states had been held to waive soverign immunity when they removed federal claims to federal court, to reach its holding.

The Ninth Circuit noted that the Supreme Court had previously held that a state can waive sovereign immunity with regard to state law claims by removing them to federal court and the Ninth Circuit itself had previously held that, at least in some circumstances a state can waive soverign immunity by removing federal statutory claims to federal court.

The court then went one step further: “We now hold that a State that removes a case to federal court waives its immunity from suit on all federal-law claims in the case, including those federal-law claims that Congress failed to apply to the states through unequivocal and valid abrogation of their Eleventh Amendment immunity,” it wrote.

As the Supreme Court had observed, it was inconsistent for a state simultaneously to invoke federal jurisdiction, thus acknowledging the federal court’s authority over the case at hand, while claiming it enjoyed sovereign immunity from the “Judicial Power of the United States” in the matter before it.

Thus, the Ninth Circuit held that a state waives soverign immunity as to all federal statutory claims in a case which the state has removed to federal court, including those federal claims that Congress did not apply to the states through unequivocal and valid abrogation of their Eleventh Amendment immunity (like the FLSA).

Click Walden v. State of Nevada to read the entire decision.

S.D.Ohio: Employer Cannot Avoid Imposition of Liquidated Damages Based on Claimed Reliance on PEO

Parks v. Central USA Wireless, LLC

This case was before the court on the parties’ cross-motions for summary judgment following what appears to be an aborted settlement.  As discussed here, plaintiffs sought summary judgment imposing liquidated damages on defendants, and contended that defendants had failed to demonstrate the requisite good faith.

After discussing the well-defined standards regarding an employer’s burden to show “good faith” to avoid an otherwise mandatory imposition of liquidated damages, the court discussed the evidence proffered by defendants:

Defendants assert as “a possible claim of good faith and reasonable grounds” the fact that Central USA Wireless relied on the aforementioned third-party professional employment organization, HUMACare, “to take care of Central’s payroll and employee administrative obligations.” (Doc. 29 at PageID 1091).

Regarding Plaintiffs’ compensation, Chris Hildebrant testified:

A: I didn’t. John, as I said, went to Michigan, Huffman, had conversations
with [Plaintiffs], and told me what they agreed upon.
Q: Did you do any analysis as to whether what they agreed upon was in
compliance with the Fair Labor Standards Act?
A: No.
Q: Did you ask anybody else to do any analysis?
A: We submitted documentations to our PEO company, and we didn’t think
anything else about it.
Q: What does PEO company mean?
A: Professional Employment Organization.
Q: Did you ask your attorneys to look into whether or not the compensation
structure was in compliance with the –
Mr. Ash: Objection. I’ll allow the question to be answered just the
way you asked, obviously the content of the question from the very beginning.
Mr. Kimble: Sure.
Mr. Ash: Go ahead.
The Witness: No.
(Doc. 15-3, Hildebrant Dep. at PageID 255–56 (39:10–40:7)).

The court held that “[t]his evidence falls far short of creating a question of material fact or meeting the ‘substantial’ burden Defendants shoulder to prove ‘both good faith and reasonable grounds’ for a failure to pay overtime.”

Elaborating, the court explained:

Hildebrant made no special inquiry to HUMACare or legal counsel about whether Plaintiffs were exempt employees. See generally id. at 857 (caselaw usually cites discussion with attorneys or government officials or sometimes accountants as evidence of good faith). Rather, he “didn’t think anything else about it.” This statement concedes negligence, which “is sufficient to support an award of liquidated damages.” Fulkerson v. Yaskawa America, Inc., No. 3:13-cv-130, 2015 WL 6408120 at *2 (S.D. Ohio Oct. 23, 2015) (citing Martin, 381 F.3d at 584).

Thus, the court held that the plaintiffs were entitled to liquidated damages.

Click Parks v. Central USA Wireless, LLC to read the entire Order.

Trump DOL Announces Proposed Rule for Tip Credit Provisions To Permit Restaurants to Indirectly Retain Portion of Employees’ Tips Under Certain Circumstances and Pay Reduced Minimum Wage for Virtually All Hours Worked

Although it has long been the law that the owners and managers of restaurants, bars and other businesses employing tipped employees may not keep or share in any portion of tipped employees tips, the Trump DOL has proposed new rules to change that under certain circumstances.  Under the new rules, neither the owners or the management of restaurants may share in tips directly.  However, if the rules go into effect, the owners of restaurants could share in the tips indirectly by diverting tips from the employees who earned them to employees who do not normally earn tips (i.e. back of house staff like cooks, dishwashers, etc.), as long as the tipped employees are paid a direct wage of at least the regular minimum wage in addition to tips.

The U.S. Department of Labor (DOL) announced a proposed rule for tip provisions of the Fair Labor Standards Act (FLSA) implementing provisions of the Consolidated Appropriations Act of 2018 (CAA).

In its Notice of Proposed Rulemaking, the DOL proposes to:

  • Explicitly prohibit employers, managers, and supervisors from keeping tips received by employees;
  • Remove regulatory language imposing restrictions on an employer’s use of tips when the employer does not take a tip credit. This would allow employers that do not take an FLSA tip credit to include a broader group of workers, such as cooks or dishwashers, in a mandatory tip pool.
  • Incorporate in the regulations, as provided under the CAA, new civil money penalties, currently not to exceed $1,100, that may be imposed when employers unlawfully keep tips.
  • Amend the regulations to reflect recent guidance explaining that an employer may take a tip credit for any amount of time that an employee in a tipped occupation performs related non-tipped duties contemporaneously with his or her tipped duties, or for a reasonable time immediately before or after performing the tipped duties.
  • Withdraw the Department’s NPRM, published on December 5, 2017, that proposed changes to tip regulations as that NPRM was superseded by the CAA.

While an email from the DOL contends that “[t]he proposal would also codify existing Wage and Hour Division (WHD) guidance into a rule.” In fact, it would change long-standing WHD guidance to legalize certain practices currently deemed wage theft by the DOL.

New Rule Would Allow Restaurants to Require Tipped Employees to Subsidize Pay of Non-Tipped Employees

The CAA prohibits employers from keeping employees’ tips.  DOL’s proposed rule would allow employers who do not take a tip credit (i.e. those who pay tipped employees direct wages at least equal to the regular minimum wage) to establish a tip pool to be shared between workers who receive tips and are paid the full minimum wage and employees that do not traditionally receive tips, such as dishwashers and cooks.

The proposed rule would not impact regulations providing that employers who take a tip credit may only have a tip pool among traditionally tipped employees. An employer may take a tip credit toward its minimum wage obligation for tipped employees equal to the difference between the required cash wage (currently $2.13 per hour) and the federal minimum wage. Establishments utilizing a tip credit may only have a tip pool among traditionally tipped employees.

New Rule Would Allow Restaurants to Pay Reduced Minimum Wage More Hours Performing Non-Tipped Duties Where Employees Are Unable to Earn Tips

Additionally, the proposed rule reflects the Department’s guidance that an employer may take a tip credit for any amount of time an employee in a tipped occupation performs related non-tipped duties with tipped duties. For the employer to use the tip credit, the employee must perform non-tipped duties contemporaneous with, or within a reasonable time immediately before or after, performing the tipped duties. The proposed regulation also addresses which non-tipped duties are related to a tip-producing occupation.

If adopted, this rule would do away with longstanding guidance from the DOL which requires employers to pay the regular minimum wage for hours of work spent performing non-tipped duties, to the extent such duties comprise more than 20% of an employee’s time worked during a workweek.

Proposed Rule Will Be Available for Review and Public Comment

After publication this NPRM will be available for review and public comment for 60 days. The Department encourages interested parties to submit comments on the proposed rule. The NPRM, along with the procedures for submitting comments, can be found at the WHD’s Notice of Proposed Rulemaking (NPRM) website.

The proposed rules along with the recent selection of a notorious anti-worker/pro-business advocate Eugene Scalia to Secretary of Labor signal that the Trump administration’s effort to erode workers’ rights is likely to continue if not accelerate for the remainder of his presidency.

10th Cir.: Workers for Recreational Marijuana Covered by FLSA, Notwithstanding Federal Law Which Renders Business Illegal

Kenney v. Helix TCS, Inc.

Following denial of the defendant-employer Helix’s motion to dismiss, Helix appealed.  Helix–a company that provides security services in the state sanctioned recreational marijuana business–appealed contending that the FLSA did not apply to it.  Specifically, Helix asserted that the FLSA does not apply to workers such as plaintiff, because Colorado’s recreational marijuana industry is in violation of federal law, the Controlled Substances Act (CSA). Rejecting this argument just as the court below had, the Tenth Circuit held that just because an employer – such as one in Colorado’s recreational marijuana industry – may be in violation of federal law, here the CSA, that does not mean its employees are not entitled to overtime under the Fair Labor Standards Act (FLSA).

Helix TCS, Inc., provides security services for businesses in Colorado’s state-sanctioned marijuana industry. One of its employees, Robert Kenney, alleged that he and other security guards regularly worked more than 40 hours per week without overtime pay.

Helix did not dispute the fact that Kenney worked more than 40 hours without overtime, nor did it try to argue that he was covered by one of the FLSA’s many overtime exemptions. Instead, it argued that the FLSA was in conflict with CSA’s purpose.  The Tenth Circuit rejected this argument and held that employers are not excused from complying with federal laws because of their other federal violations.

The 10th Circuit compared the situation to the 1931 trial of Al Capone in which jurors convicted the gangster for failing to pay taxes on his ill-gotten income. Just as there was no reason then why the fact a business was unlawful should exempt it from paying the taxes it would otherwise have had to pay, the Tenth Circuit said there is no reason today why a recreational marijuana company should be exempt from paying overtime just because it may be in violation of the CSA.

Click Kenney v. Helix TCS, Inc. to read the entire decision.

DOL Publishes Final Rule Increasing Salary Thresholds for White Collar Exemptions

Following a court decision which struck down the prior regulations promulgated by the Obama administration, which would have rendered for more employees overtime eligible, the Trump has now increased the salary threshold for white collar exemption.  This marks the first increase since 2004.

In addition to limiting the number of workers who will now receive overtime (versus the more expansive Obama-era rule), the current DOL rejected a provision automatically increasing the salary threshold over time, to ensure that another 15-20 years does not pass before the thresholds are re-examined and increased again.

The updated and revised the regulations issued under the Fair Labor Standards Act (FLSA) to allow 1.3 million workers to become newly entitled to overtime by updating the earnings thresholds necessary to exempt executive, administrative or professional employees from the FLSA’s minimum wage and overtime pay requirements.

The DOL has updated both the minimum weekly standard salary level and the total annual compensation requirement for “highly compensated employees” or HCEs to reflect growth in wages and salaries. The new thresholds account for growth in employee earnings since the currently enforced thresholds were set in 2004.

Key Provisions of the Final Rule

The final rule updates the salary and compensation levels needed for workers to be exempt in the final rule:

raising the “standard salary level” from the currently enforced level of $455 to $684 per week (equivalent to $35,568 per year for a full-year worker);
raising the total annual compensation level for “highly compensated employees (HCEs)” from the currently-enforced level of $100,000 to $107,432 per year;
allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the standard salary level, in recognition of evolving pay practices; and
revising the special salary levels for workers in U.S. territories and in the motion picture industry.

Standard Salary Level

The DOL set the standard salary level at $684 per week ($35,568 for a full-year worker).

HCE Total Annual Compensation Requirement

In addition, the DOL set the total annual compensation requirement for HCEs at $107,432 per year. This compensation level equals the earnings of the 80th percentile of full-time salaried workers nationally. To be exempt as an HCE, an employee must also receive at least the new standard salary amount of $684 per week on a salary or fee basis (without regard to the payment of nondiscretionary bonuses and incentive payments).

Special Salary Levels for Employees in U.S. Territories and Special Base Rate for the Motion Picture Producing Industry

The DOL is maintaining a special salary level of $380 per week for American Samoa. Additionally, the Department is setting a special salary level of $455 per week for employees in Puerto Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands.

The DOL also is maintaining a special “base rate” threshold for employees in the motion picture producing industry. Consistent with prior rulemakings, the Department is increasing the required base rate proportionally to the increase in the standard salary level test, resulting in a new base rate of $1,043 per week (or a proportionate amount based on the number of days worked).

Treatment of Nondiscretionary Bonuses and Incentive Payments

The DOL’s new rule also permits employers to use nondiscretionary bonuses and incentive payments to satisfy up to 10 percent of the standard salary level. For employers to credit nondiscretionary bonuses and incentive payments toward a portion of the standard salary level test, they must make such payments on an annual or more frequent basis.

If an employee does not earn enough in nondiscretionary bonus or incentive payments in a given year (52-week period) to retain his or her exempt status, the Department permits the employer to make a “catch-up” payment within one pay period of the end of the 52-week period. This payment may be up to 10 percent of the total standard salary level for the preceding 52-week period. Any such catch-up payment will count only toward the prior year’s salary amount and not toward the salary amount in the year in which it is paid.

When Will the Current Thresholds Be Updated?

Although initially proposed, the Trump DOL inexplicably rejected a provision of the rule, overwhelmingly supported by workers and workers advocates which would have automatically raised the thresholds over time without the necessity of further rulemaking.  As a result it is possible if not likely that there will be no further increase to the current thresholds for another 15 years if not more.  In its final rule the DOL reaffirms its intent to update the earnings thresholds more regularly in the future through notice-and-comment rulemaking, but given the anti-worker sentiment of the current DOL, including the recent confirmation of a steadfast anti-worker advocate as the head of the DOL, this is most-likely best viewed as lip service.

The DOL’s final rule is available at Final Rule to Update the Regulations Defining and Delimiting the Exemptions for Executive, Administrative, and Professional Employees.

Budget Bill Limits Circumstances Under Which Employers Can Use Tip Pools; Clarifies Damages Due If Employers Improperly Retain Employees Tips

After contentious negotiations and threatened government shutdowns, on March 23, the President signed the 2018 Budget Bill into law.  Of significance here, the bill resolved several longstanding regulatory issues.

The spending bill, includes an amendment to the Fair Labor Standards Act (FLSA), which now prohibits employers—including managers and supervisors—from participating in tip-pooling arrangements, even where the employer does not seek to take the so-called tip credit and pays the employees the regular minimum wage rather than the tip-credit minimum wage, sometimes referred to as the “server’s wage” in the restaurant industry.  In other words, under the new law employers, managers and supervisors can never share in a tip pool and employees can never be required to pay any portion of their tips to employers, managers or supervisors.

The amendment also clarifies two (2) issues which have divided courts regarding the disgorgement of illegally retained tips.  While many courts have long-held that an employer who illegally requires employees to share tip with non-tipped employees (managers, supervisors, back-of-house and/or kitchen staff, etc.) must return all such tips to the employees, not all courts uniformly held as such.  The amendment clarifies that damages resulting from illegal tip pooling include a return of all tips to the employees.  The amendment also clarifies that employees’ damages include liquidated damages on all damages, including the disgorged tips, an issue which had previously divided courts and for which the Department of Labor had not provided guidance previously.

In light of the fervent anti-employee stance that the Department of Labor has taken under the current administration, this certainly must be celebrated as a victory for workers.  Indeed, the law replaces a proposed regulation which garnered much opposition for its pro-wage theft stance and which was recently discovered to have been pushed through the regulatory process based on intentionally incomplete information provided by Secretary of Labor.

Click amendment to the Fair Labor Standards Act to read the full text of the new law.

M.D.Fla.: Plaintiffs Entitled to Irrebuttable Presumption That Their Damage Calculations Are Correct Where Defendant Spoliated Payroll Records

Sec’y of Labor v. Caring First, Inc.

This case was before the court on the plaintiffs’ motion for sanctions.  Specifically, plaintiffs sought sanctions as a result of the defendant-employers intentional destruction of the relevant payroll records pertaining to plaintiffs’ employment.  While the court denied plaintiffs’ motion to the extent that it sought a default judgment, the court ordered that—to the extent plaintiffs prevailed on liability at trial—their calculation based on payroll records available from a third-party would be deemed irrebuttably correct, subject to the court’s approval.

The court provided the following history of the defendants’ egregious discovery misconduct:

This case arises under the Fair Labor Standards Act of 1938 (“FLSA“), as amended, 29 U.S.C. § 201 et seq. Plaintiff alleges that Defendants mischaracterized their licensed practical nurse and registered nurse employees as independent contractors. (Compl., Doc. 1, at 3). On December 3, 2015, this Court entered a scheduling order directing the parties to exchange all documents germane to this case by January 15, 2016. (FLSA Scheduling Order, Doc. 29, ¶ 1). Defendants failed to timely comply with the disclosure of documents and, as a result, an Order to Show Cause why sanctions should not be imposed was issued. (Feb. 25, 2016 Order, Doc. 32, at 1-2). After a hearing on the matter, this Court found that sanctions were warranted against Defendants and Defendants’ counsel for their failure to comply with the Court’s order, but held the sanctions in abeyance so long as Defendants produced all relevant documents in their possession, custody, or control by March 21, 2016. (Mar. 7, 2016 Order, Doc. 37, ¶¶ 1-3).

On March 11, 2016, Plaintiff filed a motion for sanctions against Defendants. (Mot. for Sanctions, Doc. 38). Therein, Plaintiff alleged that Defendants willfully destroyed, or negligently allowed to be destroyed, payroll records prior to May 2015, despite an ongoing investigation by the Department of Labor (“Department”). (Id. at 12-13). Additionally, Plaintiff asserted that since May 2015, an administrative employee had been deleting payroll records on a weekly basis by writing [*3]  over them at the end of each work week. (Id. at 15-16). Defendants acknowledged that an employee was writing over the payroll week-to-week but claimed that the records prior to May 2015 were destroyed by a disgruntled former employee, Karen Reyes. (Id. at 7). On September 22, 2016, this Court entered an order denying the motion for sanctions because there was a factual dispute regarding whether Reyes deleted the payroll records and because Plaintiff had not yet determined what, if any, prejudice Plaintiff had suffered. (Sept. 22, 2016 Order, Doc. 55, at 6-7, 9). Nevertheless, the Court was troubled by Defendants’ actions and ordered Defendants to “immediately halt the destruction of any Current Payroll Records” and produce all payroll records to Plaintiff on a bi-weekly basis. (Id. at 10). Now, Plaintiff again seeks sanctions against Defendants and Defendants’ counsel pursuant to Federal Rule of Civil Procedure 37(b), 28 U.S.C. § 1927, and this Court’s inherent authority.

Following a discussion of the relevant standards for sanctions under Fed. R. Civ. Proc. 37, the court determined that the appropriate “punishment to fit the crime” in this case was to order that plaintiffs’ damages calculations would be subject to an irrebuttable presumption of correctness.  Specifically, the court explained that plaintiffs could not show the extreme prejudice to warrant a default judgment, because they were apparently ultimately able to obtain the payroll records at issue from defendants third-party payroll company, notwithstanding defendants’ destruction of the copies in defendants’ possession.

Thus, the court held:

Plaintiff represented at the evidentiary hearing that he was able to obtain a sampling of nurses’ paychecks from Caring First’s bank. From these paychecks, which contain the hours worked by the nurses and their pay rate, Plaintiff claims he will be able to accurately calculate back wages. Therefore, as a sanction the Court will order the production of the nurses’ paychecks from Caring First’s bank. In addition, the Court will allow Plaintiff to recalculate potential back wages based on these paychecks. If Plaintiff prevails as to liability at trial, this calculation will be irrebuttably presumed to be correct, subject to Court approval.

This is definitely a case for all wage and hour practitioners to hold on to, because the circumstances of this case are unfortunately far from unique.

Click Sec’y of Labor v. Caring First, Inc. to read the entire Opinion of the court.

3d Cir.: Employer Must Pay for All Breaks Shorter Than 20 Minutes Notwithstanding “Flex Time” Policy

Secretary United States Department of Labor v. American Future Systems, Inc.

This case was before the Third Circuit on appeal by the employer.  The district court granted the DOL’s motion for summary judgment, holding that the employer’s policy of excluding time for breaks less than 20 minutes long violated the FLSA.  The Third Circuit agreed and affirmed, holding that the Fair Labor Standards Act requires employers to compensate employees for breaks of 20 minutes or less during which they are free of any work related duties.

The court summarized the relevant facts as follows:

American Future Systems, d/b/a Progressive Business Publications, publishes and distributes business publications and sells them through its sales representatives. Edward Satell is the President, CEO, and owner of the company. Sales representatives are paid an hourly wage and receive bonuses based on the number of sales per hour while they are logged onto the computer at their workstation. They also receive extra compensation if they maintain a certain sales-per-hour level over a given two-week period.

Progressive previously had a policy that gave employees two fifteen-minute paid breaks per day. In 2009, Progressive changed its policy by eliminating paid breaks but allowing employees to log off of their computers at any time. However, employees are only paid for time they are logged on. Progressive refers to this as “flexible time” or “flex time” and explains that it “arises out of an employer’s policy that maximizes its employees’ ability to take breaks from work at any time, for any reason, and for any duration.”

Furthermore, under this policy, every two weeks, sales representatives estimate the total number of hours that they expect to work during the upcoming two-week pay period. They are subject to discipline, including termination, for failing to work the number of hours they commit to. Progressive also sends representatives home for the day if their sales are not high enough and sets fixed work schedules or daily requirements for representatives when that is deemed necessary.

Apart from those requirements, representatives can decide when they will work between the hours of 8:30 AM and 5:00 PM from Monday to Friday, so long as they do not work more than forty hours each week. As noted above, during the work day, they can log off of their computers at any time, for any reason, and for any length of time and may leave the office when they are logged off. Employees choose their start and end time and can take as many breaks as they please. However, Progressive only pays sales representatives for time they are logged off of their computers if they are logged off for less than ninety seconds. This includes time they are logged off to use the bathroom or get coffee. The policy also applies to any break an employee may decide to take after a particularly difficult sales call to get ready for the next call. On average, representatives are each paid for just over five hours per day at the federal minimum wage of $7.25 per hour.

On appeal, the defendant-employer raised three arguments: (1) that time spent logged off under its flexible break policy categorically does not constitute work; (2) that the District Court erred in finding that WHD’s interpretive regulation on breaks less than twenty minutes long, 29 C.F.R § 785.18, is entitled to substantial deference; and (3) that the District Court erred in adopting the bright-line rule embodied in 29 C.F.R. § 785.18 rather than using a fact-specific analysis. The Third Circuit rejected each of these arguments.

The court rejected the defendant’s that their defendant’s “flex time” policy was not a break policy within the meaning of the FLSA, reasoning that labeling its policy as “flex time” was simply a means to attempt to illegally circumvent the requirements of the FLSA.

The court next held that the DOL’s break time regulation, codified in 29 C.F.R. § 785.18 is entitled to Skidmore deference, the highest level of deference given to an administrative regulation.  The court reasoned that the regulation was due Skidmore deference because: (1) the former FLSA specifically empowered the DOL to promulgate such regulations; (2) the DOL’s interpretation of the break time regulations has been consistent throughout the various opinion letters the DOL has issued to address this issue; and (3) the DOL’s interpretation is reasonable given the language and purpose of the FLSA.

Having determined that the regulation is entitled to deference, the court held that the regulation must be read to create a bright line rule and concluded that it does.  The court explained that “the restrictions endemic in the limited duration of twenty minutes or less illustrate the wisdom of concluding that the Secretary intended a bright line rule under the applicable regulations.”  As such, the court affirmed the decision below and held that defendant’s break policy which excluded time for breaks less than 20 minutes long violated the FLSA.

Click Secretary United States Department of Labor v. American Future Systems, Inc. to read the entire Opinion of the Court.

USDOL Announces the Reinstatement of Issuance of Opinion Letters

The U.S. Department of Labor announced today that it will reinstate the issuance of opinion letters, a practice that was widespread under some prior administrations, but which it elected to forego during the Obama administration.  In an email announcement sent out today, the Department of Labor announced:

The U.S. Department of Labor will reinstate the issuance of opinion letters, U.S. Secretary of Labor Alexander Acosta announced today. The action allows the department’s Wage and Hour Division to use opinion letters as one of its methods for providing guidance to covered employers and employees.

An opinion letter is an official, written opinion by the Wage and Hour Division of how a particular law applies in specific circumstances presented by an employer, employee or other entity requesting the opinion. The letters were a division practice for more than 70 years until being stopped and replaced by general guidance in 2010.

“Reinstating opinion letters will benefit employees and employers as they provide a means by which both can develop a clearer understanding of the Fair Labor Standards Act and other statutes,” said Secretary Acosta. “The U.S. Department of Labor is committed to helping employers and employees clearly understand their labor responsibilities so employers can concentrate on doing what they do best: growing their businesses and creating jobs.”

The division has established a webpage where the public can see if existing agency guidance already addresses their questions or submit a request for an opinion letter. The webpage explains what to include in the request, where to submit the request, and where to review existing guidance. The division will exercise discretion in determining which requests for opinion letters will be responded to, and the appropriate form of guidance to be issued.

  

In the past, Republican administrations have often used the issuance of opinion letters to skirt the normal approval process for administrative regulation, which requires public comment.  It remains to be seen, but this will likely be a boon for employers and another setback for employees under the Trump administration.

Wage and Hour News