Romero v. Southern Waste Systems, LLC

This case was before the Court pursuant to Plaintiffs Motion to Strike Defendant’s Affirmative Defenses to Plaintiff’s Complaint. Plaintiff moved to strike several affirmative defenses, including a generalized reference to all “white collar” exemptions, a generalized exemption that the Plaintiff was paid pursuant to the parties’ “agreement,” set-off (alleging no facts to support same), and a claim that Plaintiff was not entitled to prevailing attorneys’ fees under the FLSA. Additionally, the Answer had a request for Defendant’s attorney fees without basis. The Court struck all the affirmative defenses, which were the subject of the opinion, some with leave to re-plead and other without.

Addressing each of the Defendant’s disputed affirmative defenses, the Court stated, “Defendant’s Third Affirmative Defense claims that Plaintiff was exempt from overtime compensation pursuant to the 29 U.S.C. § 213(a) (1) exemption to the FLSA. Plaintiff complains that this affirmative defense fails to allege any facts that would put Plaintiff on notice of the basis of Defendant’s claim. This provision encompasses the executive exemption, the administrative exemption, the outside sales exception, the learned professional exemption and the creative professional exemption. Defendant has agreed to amend his defense to state that Plaintiff was exempt pursuant to the executive and/or administrative exemption pursuant to 29 U.S.C. § 216(b). Leave to amend is granted.

The Court notes that 29 U.S.C. § 216(b) prescribes damages under the FLSA and is unrelated to the exemptions to the FLSA. When Defendant amends this affirmative defense, the Court instructs Defendant to be clear regarding the provision of the FLSA that forms the basis for the claimed exemption(s).”

The Seventh Affirmative Defense alleges that Defendant paid Plaintiff “all monies owed per the agreement between them.”Plaintiff takes this defense to be a restatement of the defense of accord and satisfaction. This defense is not appropriate under the FLSA because an individual cannot waive entitlement to FLSA benefits. See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707, 65 S.Ct. 895, 902 (1945) (“No one can doubt but that to allow waiver of statutory wages by agreement would nullify the purposes of the [FLSA].”). Defendant clarifies that the agreement to which the Seventh Affirmative Defense refers is the agreement that Plaintiff would be paid a salary. The Court requests that Defendant clarify this affirmative defense to make it clear that the “agreement” to which it refers is merely the “agreement” that Plaintiff would receive a salary.

The Tenth Affirmative Defense states that “Defendant is entitled to a credit/set-off for any compensation paid to Plaintiff to which he was not otherwise entitled to the extent such credits/set-off are permissible under the FLSA.”Plaintiff claims that this defense is conclusory in that it fails to allege any facts in support of any sort of set-off. Certain set-off defenses are allowable under the FLSA. Brennan v. Heard, 491 F.2d 1, 4 (5th Cir.1974), for instance, permits district courts to apply a set-off where the set-off would not reduce a plaintiff’s wages to an amount below the statutory minimum. Not all set-offs are permissible, however. This Court has previously ruled that “amounts loaned by an employer to an employee””cannot be applied to offset unpaid wages [under the FLSA].” Morrison, 434 F.Supp.2d at 1322 (citing Donovan v. Pointon, 717 F.2d 1320, 1323 (10th Cir.1983)).See also Hutton v. Grumpie’s Pizza & Subs, Inc., Case No. 07-81228-CIV-MIDDLEBROOKS, 2008 WL 1995091, *4 (S.D.Fla. May 7, 2008) (holding that a set-off defense for money employee allegedly stole from employer was inappropriate in FLSA). The Tenth Affirmative Defense does not state what, if any, compensation Plaintiff received to which he was not otherwise entitled, much less the nature of this compensation. The Tenth Affirmative Defense is stricken, but Defendant shall have leave to amend same.

The Sixteenth Affirmative Defense states that “[t]he Complaint fails to state a claim against [Defendant] upon which attorneys’ fees or costs can be awarded.”The FLSA provides that the Court “shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.”29 U.S.C. § 216(b). The Sixteenth Affirmative Defense is stricken without leave to amend.

Defendant also requests attorneys’ fees pursuant to 28 U.S.C. § 1927, which provides for awards of attorney’s fees where

[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

There is no allegation of such conduct in the Answer. Accordingly, the request for fees pursuant to 28 U.S.C. § 1927 is stricken, but with leave to amend.”