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4th Cir.: When Salaried Employees Were Misclassified, Damages Properly Calculated At “Half-Time” Rather Than Time And A Half

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"Dual Assignment" Rule "Good Faith" Defense $7.25 $35 Million Verdict $455 $500 $913 000.00 1 Week Delay 2 Or More Employees 2 Or More Employees Handling 2 Year Statute of Limitations 2d Circuit 3 Year Statute of Limitations 4 Year Degree 4-Month Period 4th Circuit 5th Circuit 6 Month Statute of Limitations 6th Circuit 7(i) 7th Circuit 8th Circuit 9 U.S .C. §§ 3 9th Circuit 10th Circuit 11 U.S.C. § 521(1) 11th Amendment 11th Circuit 13th Amendment 20 Pound Bag 20% Rule 21 Club 28 U .S.C. § 1332(d) 28 U.S.C. § 1407 28-day Work Period 29 C.F.R. 541.601 29 C.F.R. 541.605(a) 29 C.F.R. § 516.27(A) 29 C.F.R. § 516.27(B) 29 C.F.R. § 531.35 29 C.F.R. § 531.52 29 C.F.R. § 531.55 29 C.F.R. § 531.56(e) 29 C.F.R. § 541.100 29 C.F.R. § 541.105 29 C.F.R. § 541.200 29 C.F.R. § 541.200(a) 29 C.F.R. § 541.202(a) 29 C.F.R. § 541.202(b) 29 C.F.R. § 541.202(e) 29 C.F.R. § 541.300(a)(1) 29 C.F.R. § 541.301 29 C.F.R. § 541.301(a) 29 C.F.R. § 541.302(a) 29 C.F.R. § 541.313 29 C.F.R. § 541.500 29 C.F.R. § 541.502 29 C.F.R. § 541.600 29 C.F.R. §541.602(a) 29 C.F.R. § 541.604 29 C.F.R. § 552.106 29 C.F.R. § 553.101 29 C.F.R. § 553.213 29 C.F.R. § 778.108 29 C.F.R. § 778.112 29 C.F.R. § 778.114 29 C.F.R. §778.114 29 C.F.R. § 778.115 29 C.F.R. § 778.217(b) 29 C.F.R. § 778.219(a) 29 C.F.R. § 778.501(a) 29 C.F.R. § 779.315 29 C.F.R. § 779.316 29 C.F.R. § 779.317 29 C.F.R. § 779.412 29 C.F.R. § 779.416(b) 29 C.F.R. § 780.129 29 C.F.R. § 782.2 29 C.F.R. § 782.5(a) 29 C.F.R. § 785.23 29 C.F.R. § 785.48(b) 29 C.F.R § 785.18 29 CFR Part 552 29 U.S.C. 207(h) 29 U.S.C. 215 29 U.S.C.A. § 203(y) 29 U.S.C. § 203(m) 29 U.S.C. § 203(o) 29 U.S.C. § 203(r)(1) 29 U.S.C. § 203(r)(2)(A) 29 U.S.C. § 203(s) 29 U.S.C. § 207(e)(1)-(8) 29 U.S.C. § 207(e)(2) 29 U.S.C. § 207(e)(5)-(7) 29 U.S.C. § 207(h)(2) 29 U.S.C. § 207(i) 29 U.S.C. § 207(k) 29 U.S.C. § 207(p)(1) 29 U.S.C. § 209(m) 29 U.S.C. § 213(10)(a) 29 U.S.C. § 213(a)(1) 29 U.S.C. § 213(a)(15) 29 U.S.C. § 213(a)(17) 29 U.S.C. § 213(b)(1) 29 U.S.C. § 215 29 U.S.C. § 215(a) 29 U.S.C. § 215(a)(3) 29 U. 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C. §215(a)(3). 29 U.S.C. § 216(b) 29 U.S.C. § 218(a) 29 U.S.C. § 255(a) 29 U.S.C. § 256(b) 29 U.S.C. § 259 29 U.S.C. § 260 30-Minute Deductions 34(a)(2) 168 Hours 207(h) 215(a)(3) 216(b) 541.601 778.112 778.115 785.23 1099 2010 FLSA Amendments 2010-1 10000 Pound Vehicles A & P Mechanic AAA AA Meeting Abbot Laboratories Abbott Absent Arbitration Clause Absent Class Members Abuse of Discretion Acceptance of Offer of Judgment Accountant Accountant Advice Accountant Liability for FLSA Violations Accountant Malpractice Act 72 Actual Duties Actual Knowledge Actual Weight ADA Addresses ADEA Adequacy of Representation Administrative Exemption Administratively Exempt Administrative Procedure Act Administrative Proceeding Administrator's Interpretation Administrator's Interpretation No. 2010-2 Adminstrative/Production Dichotomy Adminstrative Exemption Adminstrative Remedy Admissibility Adult Entertainers Advanced Knowledge Advertising Sales Advice of Counsel Affidavit Affirmative Defense Affirmative Defenses Affirmative Steps After-Hours Agreement Agreement to Arbitratrate Agricultural Employees Agricultural Exemption Air Carrier Air Carrier Exemption Airline Carrier Airline Deregulation Act of 1978 Airport Shuttle Al Capone Alpharma Amended Answer Amended Complaint American Arbitration Association American Eagle Drivers American Samoa Amicus Amicus Brief Amount of Discovery Anonymous Plaintiff Anti-Retaliation APA Applebee's Apprenticeship Approval Not Required Approval of Settlement Arbitral Decision Arbitration Arbitration Agreement Arbitration Agreements Arbitration Clause Arbitration Costs Arbitration in FLSA Cases Arbitration Invalidated Arbitrator Arbitrator's Jurisdiction Arbitrator Decide Class Arindrajit Dube Arise Misclassification Claims Arise Overtime Claims Arise Virtual Solutions Arise Wage Theft Arm of the State Assistant Manager Assistant Store Managers AT&T Mobility LLC v. 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P. 43 Fed.R.Civ.P. 68 Federal Arbitration Act Federal Aviation Act Federal Court Federal Register Federal Rule of Civil Procedure 23(b)(3) FedEx Fee Basis Fee Shifting Fee Splitting Field Coordinator Field Managers Field of Science or Learning Fifth Circuit Final Regulations Final Rule Final Rule Domestic Service FINRA FINRA Rule 13204 Firefighters Fire Suppression and Prevention First-Filed First-Filed Rule First Circuit Five Hundred Thousand Dollars Fixed Amount as Straight Time Pay Fixed Salary Flex Time Flight Attendants Florida Constitution Florida Minimum Wage Florida Unpaid Wages Florida Wage Law FLSA FLSA-Protected Activity FLSA Collective Action Waiver FLSA Coverage FLSA Employee FLSA employee misclassification FLSA Employer FLSA Exemptions FLSA Minimum Wage FLSA Overtime FLSA overtime claim FLSA Preemption FLSA Protections FLSA recordkeeping requirements FLSA Retaliation FLSA Settlement Approval FLSA Settlements FLSA Standing FLSA time-shaving FLSA Workweek FLSA Work Week Fluctuating Workweek Fluctuating Work Week FMLA Food in Lieu of Wages Food Service Foot Locker Forced Arbitration Foreign-flagged Ships Foreign Country Foreign Work Exemption Form of Consent to Join Form of Notice Form WH-58 Fourth Circuit Four Year Degree Franchisee franchise workers Franchisor FRCP 8 FRCP 9(b) FRCP 10(a) FRCP 15(b) FRCP 23 FRCP 26(c) FRCP 41(a) FRCP 68 FRE 702 Full Damages Full Relief Function Test FWW GAO Study Gap Time Garment Workers Garnishment Gas Gawker General Household Work General Manager General Release Genesis Genesis Healthcare Corp. 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Desmond v. PNGI Charles Town Gaming, L.L.C.

As discussed here previously, this was the second time this case ended up at the 4th Circuit.  Previously, the 4th Circuit had vacated the trial court’s Order determining the plaintiff’s to be administratively exempt and remanded the case for further findings.  On this appeal the plaintiffs challenged the lower court’s ruling as to how their damages in this so-called “salary misclassified” case should be determined.  Additionally, the defendant cross-appealed the lower court’s determination, on summary judgment, that it’s violations were willful.  Joining other Circuits who have ruled on the calculation issue, the 4th Circuit held that the lower court properly applied a so-called “half-time” calculation in determining the plaintiffs damages.

In making its ruling, the 4th Circuit discussed, at length case law from other circuits:

“The former employees worked as racing officials with Charles Town Gaming. J.A. 50. Charles Town Gaming prepared the job descriptions for racing officials in 1999. Id. at 55-56. In doing so, Charles Town Gaming’s human resources director used a computer program to help determine whether to designate the position as exempt or non-exempt from overtime under the FLSA. Id. Charles Town Gaming paid the racing officials a per diem rate and treated them as exempt. See Aff. Karen Raffo, Nov. 20, 2007. Over the ensuing years, Charles Town Gaming changed the pay from per diem to a fixed weekly salary that the parties intended to cover all hours worked. See J.A. 56, 146-52; Aff. Karen Raffo, Nov. 20, 2007. Charles Town Gaming believed (erroneously) that the former employees were subject to the FLSA administrative exemption; therefore, Charles Town Gaming did not pay them overtime. J.A. 49. All three appellants often worked more than 40 hours in a week. Id. at 50. After the appellants unanimously declared the wrong horse to have won a race, Charles Town Gaming dismissed them from their employment. Id.

The former employees contend the district court erred in calculating their unpaid overtime compensation under 29 U.S.C. § 216(b). Charles Town Gaming contends the district court erred by concluding that their FLSA violation was willful. We review a grant of summary judgment de novo. See, e.g., United States v. Bergbauer, 602 F.3d 569, 574 (4th Cir.2010). When cross-motions for summary judgment are before a court, the court examines each motion separately, employing the familiar standard under Rule 56 of the Federal Rules of Civil Procedure. See, e.g., Ga. Pac. Consumer Prods., L.P. v. Von Drehle Corp., 618 F.3d 441, 445 (4th Cir.2010).

The former employees challenge how the district court calculated their unpaid overtime compensation under 29 U.S.C. § 216(b). The Supreme Court addressed how to calculate such unpaid overtime compensation under 29 U.S.C. § 216(b) in Overnight Motor. 316 U .S. at 580. The Court held that when calculating the “regular rate” of pay for an employee who agreed to receive a fixed weekly salary as payment for all hours worked, a court should divide the employees fixed weekly salary by the total hours worked in the particular workweek.   Id. at 579-80 (analyzing section 7 of the FLSA, now codified at 29 U.S.C. § 207(a)(1)). This calculation should be completed for each workweek at issue and results in a regular rate for a given workweek. Id. Of course, the Court recognized that the regular rate could vary depending on the total hours worked. The Court then determined that the employee should receive overtime compensation for all hours worked beyond 40 in a given workweek at a rate not less than one-half of the employee’s regular rate of pay. Id.

Although the parties agree that Overnight Motor applies in calculating the regular rate, they disagree about how to calculate the overtime premium. Specifically, the parties disagree over whether the former employees should receive 150% of the regular rate for all hours worked over 40 in a given workweek or 50% of the regular rate for all hours worked over 40 in a given workweek.

In analyzing how to calculate unpaid overtime compensation under 29 U.S.C. § 216(b) in this mistaken exemption classification case, we note that four sister circuits have addressed this issue. The First, Fifth, Seventh, and Tenth Circuits all have determined that a 50% overtime premium was appropriate in calculating unpaid overtime compensation under 29 U.S.C. § 216(b) in mistaken exemption classification cases, so long as the employer and employee had a mutual understanding that the fixed weekly salary was compensation for all hours worked each workweek and the salary provided compensation at a rate not less than the minimum wage for every hour worked. See Urnikis-Negro v. Am. Family Prop. Servs., 616 F.3d 665 (7th Cir.2010); Clements v. Serco, Inc., 530 F.3d 1224 (10th Cir.2008); Valerio v. Putnam Assocs., Inc., 173 F.3d 35 (1st Cir .1999); Blackmon v. Brookshire Grocery Co., 835 F.2d 1135 (5th Cir.1988).

In Blackmon, the Fifth Circuit applied 29 C.F.R. § 778.114 to calculate unpaid overtime compensation in a mistaken exemption classification case. 835 F.2d at 1138. The employees in Blackmon were meat-market managers who were wrongly classified as exempt. Id. at 1137-38. The district court calculated their unpaid overtime compensation by dividing the weekly salary by 40 hours to determine their regular rate, multiplying that rate by 150%, and then multiplying that result by the number of overtime hours. Id. at 1138. The Fifth Circuit rejected this method, instead applying 29 C.F.R. § 778.114 to determine the regular rate, and only using a 50% multiplier. Id. The Fifth Circuit did not cite, much less discuss, Overnight Motor.

In Valerio, the First Circuit upheld an award of summary judgment in a mistaken exemption classification case. 173 F.3d at 39-40. Valerio was wrongly classified as an exempt employee. Id. at 37. Upon dismissing Valerio from employment, her employer gave her a lump-sum payment intended to cover any overtime owed to her. Id. at 38. In calculating the unpaid overtime compensation, the employer paid her a 50% overtime premium and relied on 29 C.F.R. § 778.114. The First Circuit affirmed the district court’s finding that the amount paid was more than was owed to Valerio under the FLSA. Id. In Valerio, the First Circuit cited, but did not discuss, Overnight Motor. Id. at 39-40.

In Clements, the Tenth Circuit affirmed a district court’s application of 29 C.F.R. § 778.114 to calculate unpaid overtime compensation in a mistaken exemption classification case. 530 F.3d at 1225. The employees in Clements provided recruiting services to the Army on behalf of their employer, Serco. Id. Serco had erroneously classified these employees as exempt under the “outside salesmen” exemption. Id. at 1227; cf. 29 U.S.C. § 213(a)(1). The employees claimed a 150% multiplier applied because the employer and employees had not agreed on whether overtime compensation was owed. Clements, 530 F.3d at 1230. In affirming the use of a 50% multiplier in calculating the unpaid overtime compensation, the Tenth Circuit cited 29 C.F.R. § 778.114, the First Circuit’s decision in Valerio, and our decision in Bailey v. County of Georgetown, 94 F.3d 152, 155-57 (4th Cir.1996).   Clements, 530 F.3d at 1230. The Tenth Circuit found the lack of a clear and mutual understanding on the overtime premium to be “irrelevant as to whether the Employees understood they were being paid on a salaried … basis.” Id. at 1231. In Clements, the Tenth Circuit did not cite, much less discuss, Overnight Motor.

In Urnikis-Negro, the Seventh Circuit affirmed a district court’s award of a 50% overtime premium to calculate unpaid overtime compensation in a mistaken exemption classification case. 616 F.3d at 684. However, the court rejected the district court’s retroactive application of 29 C.F.R. § 778.114, finding it a “dubious source of authority for calculating a misclassified employee’s damages.” Id. at 679. Instead, the court relied on Overnight Motor. Id. at 680-84. The court held that when an employer and employee agree that a fixed salary will constitute payment at the regular rate for all hours worked and the rate is not lower than the minimum wage, a court should rely on Overnight Motor to calculate unpaid overtime compensation under 29 U.S.C. § 216(b). Id. Moreover, in such a situation, the court calculates the unpaid overtime compensation using a 50% multiplier rather than a 150% multiplier. See id.

In addition to these decisions from our sister circuits, the Department of Labor also has approved using a 50% overtime premium to calculate unpaid overtime compensation in a mistaken exemption classification case. See Retroactive Payment of Overtime and the Fluctuating Workweek Method of Payment, Wage and Hour Opinion Letter, FLSA 2009-3 (Dep’t of Labor Jan. 14, 2009). The DOL issued the opinion letter in response to an employer who asked how to compensate employees mistakenly classified as exempt. Id. at 1. In the opinion letter, the DOL states that “because the fixed salary covered whatever hours the employees were called upon to work in a workweek; the employees will be paid an additional one-half their actual regular rate for each overtime hour …; and the employees received and accepted the salary knowing that it covered whatever hours they worked,” a retroactive payment of overtime using the 50% multiplier conforms with FLSA requirements. Id. at 2.

Here, the district court did not apply 29 C.F.R. § 778.114 to this mistaken exemption classification case. Rather, the district court relied on the logical implications of Overnight Motor to calculate unpaid overtime compensation under 29 U.S.C. § 216(b). Desmond, 661 F.Supp.2d at 584. The district court found that there was an agreement that the fixed weekly salary covered all hours worked. Id. The district court then reasoned that Overnight Motor’s regular-rate determination implies the previously paid weekly salary covers the base compensation for all hours worked. Id. Thus, the district court concluded that it need only award 50% of the regular rate to provide the employees their “unpaid overtime compensation” under 29 U.S.C. § 216(b). Id.

Appellants disagree and insist that such a reliance on Overnight Motor improperly expands federal common law. They also (confusingly) argue that Chevron deference to 29 C.F.R. § 778.114 requires courts to use a 150% multiplier and that if employers are allowed to retroactively apply section 778.114 in mistaken exemption classification cases, employers have no motive to pay for overtime as it accrues, effectively treating nonexempt employees as if they were exempt. In appellants’ view, such a holding will create an incentive for employers to pay a fixed weekly salary, never to pay overtime, and then simply pay a 50% premium on the regular rate if caught misclassifying non-exempt employees as exempt employees. Cf. 29 U.S.C. § 213(a)(1); 29 C.F.R. pt. 541 (white-collar exemption regulations).

As the district court held, appellants’ argument ignores the teaching of Overnight Motor. After all, in Overnight Motor, the Court recognized that employees and employers are free to agree to a reduced hourly wage in exchange for a fixed weekly salary, provided the fixed weekly salary covers all hours worked and meets minimum wage requirements. 316 U.S. at 580. In our view, the district court correctly concluded that Overnight Motor provides the appropriate method for calculating the unpaid overtime compensation under 29 U.S.C. § 216(b) in this case. Tellingly, in Overnight Motor, the Court provided the formula to compute the overtime due an employee who was paid a fixed weekly salary intended to cover all hours worked. Overnight Motor, 316 U.S. at 580 n. 16. Although Overnight Motor concerned the more basic question of whether overtime compensation applies to those earning more than the minimum wage requirements in the FLSA, 316 U.S. at 575, it contains nothing to indicate why such a computation would not apply in determining unpaid overtime compensation under 29 U.S.C. § 216(b) in a mistaken exemption classification case. Indeed, in Overnight Motor, the Court interpreted 29 U.S.C. § 207(a) and explained the meaning of “the regular rate at which he is employed,” and interpreted 29 U.S.C. § 216(b) and explained how to calculate “unpaid overtime compensation.” See Overnight Motor, 316 U.S. at 574 n. 2, 579-80.

Traditional principles of compensatory damages bolster this conclusion. Compensatory damages are “[d]amages sufficient in amount to indemnify the injured person for the loss suffered.” Black’s Law Dictionary 445 (9th ed.2009). Here, the former employees agreed to receive straight time pay for all hours worked in a given workweek and have already received such pay. Thus, the “loss suffered” is the 50% premium for their overtime hours. Accordingly, we affirm the district court’s judgment about how to calculate unpaid overtime compensation under 29 U.S.C. § 216(b).”

Currently, the plaintiffs in the 7th Circuit case, Urnikis-Negro v. Am. Family Prop. Servs., 616 F.3d 665 (7th Cir.2010), have filed a petition for cert in the Supreme Court, so the effect of the 4th Circuit’s holding may be should-lived.


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