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11th Cir.: Rehearing En Banc Denied On Refusal To Award Prevailing FLSA Plaintiff Attorney’s Fees; Strong Dissents
Sahyers v. Prugh, Holliday & Karatinos, P.L.
In a decision discussed here previously, the 11th Circuit had affirmed the trial court’s decision to award no attorneys fees or costs, in a case where they reasoned that attorney civility towards one another trumped the mandatory fee provisions of the FLSA. The case was again before the 11th Circuit, this time on Plaintiff’s Motion for a Rehearing En Banc. Although the Court denied the Motion for Rehearing, significantly, there was very strong dissent, perhaps signaling that the case may be ripe for review at the United States Supreme Court, who just this week signaled they will begin hearing more cases than they have in recent years.
Citing legal principle, but little statutory authority for the Court’s position, in a concurring opinion, one Judge explained, in part:
“About this case, I have a few observations to make. Lawyers, as members of the Courts’ Bars (that is, as officers of the Courts) are often, and in a variety of ways, treated by the Courts better or worse than nonlawyers. I stress that I do not see the Courts’ inherent powers to supervise the members of their Bars as “overriding” (that is, cancelling) the FLSA statute’s treatment of fees. The statute is law, general law tied to the outcome of FLSA suits.
I see the Courts’ inherent powers over Bar members as a separate and pre-existing font of law and legal authority that specifically governs the conduct of lawyers as lawyers, regardless of the outcome of the case: the law of inherent powers supplements the FLSA statute to make up the whole of the applicable law in this case. Therefore, I see the whole applicable law to run this way: When the outcome favors the plaintiff, fees shall be awarded unless the District Court, in the reasonable exercise of its power to supervise lawyers in their practice in cases before the Court, determines that an award of fees (given the specific circumstances of a particular case) is not right-not right directly because of lawyer conduct related to the specific case. Thus, fees nearly always are to be awarded; but never are the Courts altogether stripped of the power to supervise lawyer conduct through the grant or withholding of fees.
That Courts have the inherent and main-if not exclusive-authority (along with the duty and responsibility) to supervise their Bar members is, I believe, no innovative idea. And that Courts can use the control of attorney fees as a means of exercising the inherent power to supervise lawyer conduct in particular cases seems uninnovative too. See Chambers v. NASCO, Inc., 111 S.Ct. 2123, 2133 (1991) (court may per inherent power assess attorneys fees when a party has acted in bad faith, vexatiously, wantonly, or for oppressive purposes); Roadway Express, Inc. v. Piper, 100 S.Ct. 2455, 2463 (1980) (federal courts have inherent powers to assess attorneys fees against counsel).”
With separate strongly worded dissents, Circuit Court Judges Barkett and Wilson, sternly warned that the Eleventh Circuit had exceeded their authority by attempting to ignore the FLSA, a federal statute, without any basis.
BARKETT, Circuit Judge, dissenting:
“En banc review is warranted in this case because district courts do not have the power, inherent or otherwise, to directly contravene a federal statute. The panel decision, holding that the district court could deny attorneys’ fees mandated by the Fair Labor Standards Act (“FLSA”), is contrary to settled United States Supreme Court precedent providing that the use of a district court’s inherent supervisory powers is invalid when it conflicts with a statutory command. See, e.g. Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988); Thomas v. Arn, 474 U.S. 140, 148 (1985). As Judge Wilson notes in his dissent, there is no dispute that the language of the statute is mandatory, see29 U.S.C. § 216(b) (“The court in such action shall, in addition to any judgment awarded to plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.”), and has been previously so construed by our court. Dale v. Comcast Corp., 498 F.3d 1216, 1223 n.12 (11th Cir.2007).
The panel characterizes the denial of attorneys’ fees as an informal sanction of Sahyers’ lawyer for suing fellow lawyers without first attempting to resolve the dispute through informal means. In his concurrence to the denial of rehearing, Judge Edmondson stresses that the district court based its decision on local litigation customs and practices, but the district court opinion references no such customs or practices. The district court simply says that, in its view, it is “reasonable” to call another lawyer prior to filing suit. That is not enough to give notice to Sahyers’ attorney. District courts do not have the authority to sanction lawyers for conduct not proscribed by law or rule-which is the case here-without first providing them with notice that their conduct may warrant sanctions. Fed.R.Civ.P. 83(b) (“No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement.”). Because Sahyers’ attorney was given no actual notice, the district court had no authority to sanction him for failing to contact the defendants or their lawyers before filing suit. See In re Mroz, 65 F.3d 1567, 1575 (11th Cir.1995) (“Due process requires that the attorney (or party) be given fair notice that his conduct may warrant sanctions and the reasons why.” (citation omitted)). Accordingly, there is no authority for disregarding the mandatory language of FLSA on this basis.
The panel’s only supporting authority for its contention that a court may deny an award of litigation expenses to which a client is otherwise entitled by law is Litton Syss., Inc. v. Am. Tel. & Tel. Co., 700 F.2d 785 (2d Cir.1983). However, that decision does not permit a district court to simply disregard the express language of a statute that mandates attorneys’ fees and costs. Rather, it affirms a sanction imposed under Federal Rule of Civil Procedure 37 for “gross negligence” and “willful misconduct” by the plaintiff’s lawyers. Id. at 826-28. The failure to notify an opposing lawyer prior to suit in the absence of any known requirement to do so can hardly qualify as negligence or willful misconduct.
Because the panel opinion disregards the express mandate of Congress, this case warrants en banc review.”
WILSON, Circuit Judge, dissenting:
“The Court affirms a decision by a district court that denies a prevailing plaintiff’s lawyer his entitlement to an attorney’s fee under the Fair Labor Standards Act (“FLSA”) on account of his failure to give the defendant, a lawyer, advance notice of the lawsuit. I am concerned about the precedent this case sets. First, an award of attorneys’ fees to a prevailing party is mandatory under the FLSA. Second, I have found no authority that requires plaintiff’s counsel to provide pre-suit notice when another lawyer is the defendant. Although well-intentioned, I doubt that the federal courts have the inherent authority to ignore and override a statutory mandate in the interest of promoting a professional courtesy. I also do not believe that Congress intended to single out lawyers for exclusive treatment under the FLSA. Since it is now within the inherent authority and discretion of the district courts in our Circuit to hold that no attorney’s fee is a reasonable fee when no pre-suit notice is extended to defendants who are lawyers, I would consider this case en banc before permitting this new Circuit precedent to stand.
The facts are these. Plaintiff Christine Sahyers worked as a paralegal for the defendant law firm Prugh, Holliday & Karatinos, P.L. On January 9, 2007, Sahyers filed a lawsuit against her former employer and its three owners and principals, Timothy F. Prugh, James W. Holliday, II, and Theodore Karatinos (collectively the “defendants”), pursuant to the FLSA to recover unpaid overtime compensation. The defendants filed an answer, denying liability. The case proceeded to discovery, and less than one month after a failed court-ordered mediation, the plaintiff accepted an offer of judgment pursuant to Federal Rule of Civil Procedure 68. The next day, the district court entered final judgment against the defendants in the amount of $3,500.
Thereafter, the plaintiff filed a motion for attorneys’ fees and expenses, in which she sought $15,640.70, comprised of $13,800 in attorneys’ fees and $1,840.70 in costs. The district court determined that the plaintiff was a prevailing party under the FLSA. However, recognizing that the FLSA provides for a mandatory award of reasonable attorneys’ fees, the district court was persuaded to conclude that this case presented “special circumstances” and decided that “a reasonable fee is no fee.” Sahyers v. Prugh, Holliday & Karatinos, P.L., No. 8:07-cv-52-T-30MAP, slip op. at 3 (M.D.Fla. Feb. 1, 2008) (“District Court Order”).
The district court found that the plaintiff subjected the defendants to “unnecessary litigation” and refused to reward such behavior because at no time prior to filing the lawsuit did the plaintiff or the plaintiff’s attorney make a written demand for payment of the overtime compensation. Id. at 3-5. Further, the district court stressed that the plaintiff’s attorney should have notified the defendant law firm, because prior to filing suit in the Middle District of Florida, “it is still reasonable to pick up the phone and call another lawyer so it won’t be necessary to file suit.” Id. at 4. The district court dismissed the plaintiff’s counsel’s claim that his client did not want him to make a pre-suit demand, “remind[ing] [plaintiff’s counsel] that the lawyer is the officer of the Court, not the client.” Id. at 5. The plaintiff appealed the denial of attorneys’ fees and costs, and defendant Karatinos cross-appealed the district court’s determination that the plaintiff was a prevailing party.
With the benefit of oral argument, the Sahyers opinion affirmed. The Sahyers opinion framed the issue in this way: “This appeal is about the power of a district court to supervise the work of the lawyers who practice before it.” Sahyers v. Prugh, Holliday & Karatinos, P.L., 560 F.3d 1241, 1243 (11th Cir.2009). The Sahyers opinion construed the District Court Order as creating an “exception” to the FLSA’s mandatory fee statute based on the district court’s “inherent powers to supervise the conduct of the lawyers who come before it and to keep in proper condition the legal community of which the courts are a leading part.” Id. at 1244. It explained that “at least in the absence of very clear words from Congress, we do not presume that a statute supersedes the customary powers of a court to govern the practice of lawyers in litigation before it.” Id. at 1245 n.6. I disagree-well-settled Supreme Court precedent rejects the Sahyers opinion’s “very clear words” standard.
“In the exercise of its supervisory authority, a federal court ‘may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress.’ ” Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988) (quoting United States v. Hasting, 461 U.S. 499, 505 (1983)) (emphasis added). One of those limits on a federal court is when Congress has spoken: “[e]ven a sensible and efficient use of [a court’s] supervisory power, however, is invalid if it conflicts with constitutional or statutory provisions.” Thomas v. Arn, 474 U.S. 140, 148 (1985). “A contrary result ‘would confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing.’ ” Id. (quoting United States v. Payner, 447 U.S. 727, 737 (1980)). Applied here, the Sahyers opinion’s denial of attorneys’ fees and costs as an exercise of its supervisory authority over the practice of lawyers conflicts with the plain language of the FLSA.
The FLSA is a mandatory fee statute, and we have not recognized any exception to it. “The court in such action 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) (emphasis added). The Supreme Court, our Circuit, and our sister circuits have consistently interpreted § 216(b) as mandatory. FN1 We have gone so far as to declare expressly that “[p]revailing plaintiffs are automatically entitled to attorneys’ fees and costs under the FLSA.” Dale v. Comcast Corp., 498 F.3d 1216, 1223 n.12 (11th Cir.2007) (emphasis added).
FN1. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 415 & n.5 (1978) (referring to § 216(b) of the FLSA as one of the “statutes [that] make fee awards mandatory for prevailing plaintiffs”); Singer v. City of Waco, 324 F.3d 813, 829 n.10 (5th Cir.2003) (“The FLSA requires an employer who violates the statute to pay attorney’s fees.”); Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 406 (7th Cir.1999) (“While the award of fees [under the FLSA] is mandatory, the district court has ‘wide latitude’ in determining the amount of the fee.”) (citation omitted); Fegley v. Higgins, 19 F.3d 1126, 1134 (6th Cir.1994) (“An award of attorney fees to a prevailing plaintiff under § 16(b) of the FLSA is mandatory, but the amount of the award is within the discretion of the judge.”) (citation omitted); Shelton v. Ervin, 830 F.2d 182, 184 (11th Cir.1987) (“Section 216 provides for an award of attorney’s fees, as opposed to granting the court discretion in awarding such fees, to the prevailing plaintiff in FLSA cases.”) (emphasis added); Kreager v. Solomon & Flanagan, P.A., 775 F.2d 1541, 1542 (11th Cir.1985) (“Section 216(b) of the Act makes fee awards mandatory for prevailing plaintiffs.”); Burnley v. Short, 730 F.2d 136, 141 (4th Cir.1984) (“The payment of attorney’s fees to employees prevailing in FLSA cases is mandatory. The amount of the attorney’s fees, however, is within the sound discretion of the trial court.”) (internal citation omitted); Graham v. Henegar, 640 F.2d 732, 736 n.8 (5th Cir. Unit A Mar. 1981) (“[A]n award of attorney’s fees to a prevailing plaintiff in an FLSA suit is mandatory.”); Wright v. Carrigg, 275 F.2d 448, 449 (4th Cir.1960) (“With respect to the counsel fee [pursuant to § 216(b) ], the court had no discretion to deny it; the law’s requirement of an award is mandatory and unconditional.”); Murray v. Playmaker Servs., LLC, 548 F.Supp.2d 1378, 1381 (S.D.Fla.2008) (Ryskamp, J.) (providing that the FLSA “directs district courts to award reasonable attorney’s fees and costs to a plaintiff, in addition to any judgment received”) (emphasis added).
In a perfect world, a lawyer who files a lawsuit against another lawyer would first attempt to resolve the matter outside the courthouse. Such a practice is both sensible and efficient. However, a procedural rule that in effect mandates pre-suit notice is invalid if it conflicts with a statutory provision. The Court’s opinion in effect reads a requirement of pre-suit notice into § 216(b) of the FLSA, at least where a law firm or lawyer is a defendant, thereby “confer[ring] on [itself] discretionary power to disregard the considered limitations of the law it is charged with enforcing.” Arn, 474 U.S. at 148 (quoting Payner, 447 U.S. at 737). Although a legislature can make pre-suit notice mandatory when it chooses, that circumstance does not apply here. See, e.g.,Fla. Stat. § 766.106(2)(a) (providing that “prior to filing a complaint for medical negligence, a claimant shall notify each prospective defendant”). While it is desirable to encourage lawyer collegiality and to discourage unnecessary litigation, I do not believe that we can rewrite a statute to conform with certain policy preferences. See Reeves v. Astrue, 526 F.3d 732, 738 (11th Cir.2008) (“The Supreme Court has advised that whatever merits … policy arguments may have, it is not the province of this Court to rewrite the statute to accommodate them.”) (quotation marks, alteration, and citation omitted). The Sahyers opinion provides binding precedent for a district court to ignore a clear Congressional mandate from a federal statute based on its “inherent powers.” Such precedent oversteps the boundaries of our proper duty as neutral arbiters and obviates the role of Congress. My discussion could end here, as the plaintiff was the prevailing party, and the FLSA’s plain language is controlling.
Moreover, I also disagree with the Court’s statement that “a lawyer’s duties as a member of the bar-an officer of the court-are generally greater than a lawyer’s duties to the client.” Sahyers, 560 F.3d at 1245 n.7. It bears repeating that the Sahyers opinion failed to cite any statute, rule, local rule, or case from this Circuit, the Middle District of Florida, or elsewhere that even arguably imposes a duty on an attorney to contact prospective opposing counsel where that counsel represents a law firm or a lawyer. I can find no rule of professional responsibility that would place Sahyers’ lawyer on notice that it is a breach of professional or ethical responsibility to file a lawsuit against a fellow lawyer without the courtesy of advance notice. Honorable though it may be, providing a lawyer-defendant with pre-suit notice in FLSA cases is neither a requirement, nor a breach of a lawyer’s ethical responsibility.
I recognize that the appropriate balance between duty to a client and duty of candor to the court is certainly a difficult one to strike. In certain circumstances, a lawyer’s duty to the court is “greater” than his or her duty to a client. However, while counsel owes a duty to the court, context matters. The plaintiff did not instruct her counsel to commit a crime, to perpetrate a fraud upon the court, or to file a frivolous lawsuit. Rather, the plaintiff merely instructed her counsel to file a lawsuit, which-considering the fact that defendants filed an answer as opposed to a motion to dismiss and ultimately offered judgment-appeared to have, at least, some merit. In fact, the Model Code of Professional Responsibility appears to require exactly what the plaintiff’s counsel did-follow his client’s instructions: “[T]he lawyer should always remember that the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client and not for himself.” Model Code of Prof’l Responsibility EC 7-8 (1983); see also id. at EC 7-7 (providing that, except in areas of legal representation not affecting the merits of the cause or substantially prejudicing the rights of a client, “the authority to make decisions is exclusively that of the client and, if made within the framework of the law, such decisions are binding on his lawyer”) (emphasis added). Hence, not only is there no rule requiring plaintiff’s counsel to give pre-suit notice to his fellow lawyers, plaintiff’s counsel had an ethical duty to follow his client’s instructions. In applying the Sahyers opinion’s reasoning, however, a plaintiff’s lawyer must ignore a client’s explicit instruction to file an arguably meritorious lawsuit and must first give “word” by way of a phone call, e-mail, or letter before “su[ing] his fellow lawyers.” This rule should not be the law.
The Sahyers opinion equated the conduct of the plaintiff’s counsel to bad faith: “the conscious indifference to lawyer-to-lawyer collegiality and civility exhibited by Plaintiff’s lawyer (per his client’s request) amounted to harassing Defendants’ lawyers by causing them unnecessary trouble and expense and satisfied the bad-faith standard.” 560 F.3d at 1246 n.9. It relies on Litton Systems, Inc. v. American Telephone & Telegraph Co., 700 F.2d 785 (2d Cir.1983), stating that “[a] court … may deny an award of litigation expenses to which a client is otherwise entitled.” Sahyers, 560 F.3d at 1245. As a threshold matter, Litton Systems, a Second Circuit opinion, is not binding precedent in this Circuit; it is merely persuasive authority. Additionally, Litton Systems does not stand for that broad proposition, and, even if it did, the facts of Litton Systems are so far removed from Sahyers that the former sheds no light on the latter. The Litton court merely affirmed a sanction pursuant to Federal Rule of Civil Procedure 37 finding “gross negligence” and “willful misconduct.” Here, the district court did not impose any sanction and did not invoke Rule 37. Instead, it carved out a “special circumstances” exception to the FLSA. See District Court Order at 3. The only reason relied upon by the district court to award Sahyers “nothing” as an attorney’s fee was the failure to extend the professional courtesy of pre-suit notice to a law firm. This conduct does not amount to bad faith.
Finally, I am troubled by the implication that lawyers are entitled to exclusive treatment under the FLSA. Although the Sahyers opinion states that it does not intend to create a new rule of pre-suit notice in FLSA cases where the defendant is a law firm or a lawyer, such language will surely fall on deaf ears in this Circuit (as it should) in light of the fact that Sahyers is a published opinion, which makes it binding precedent in this Circuit. See I.O.P. 2 to Fed. R.App. P. 36 (“Under the law of this circuit, published opinions are binding precedent.”). Section 216(b) pays no attention to the occupation of the defendants. Neither should we. The Sahyers opinion has unintentionally created a new rule that a plaintiff’s failure to give pre-suit notice to a lawyer-defendant in an FLSA case may forfeit the plaintiff’s otherwise statutory right to attorneys’ fees and costs. Courts within this Circuit will rely on Sahyers and will interpret it as creating a discretionary exception to a mandatory fee statute. In point of fact, courts both within this Circuit and outside of this Circuit have already followed suit, recognizing, but not yet applying, the proposition that no fee can be a reasonable fee under the FLSA when a plaintiff fails to give pre-suit notice to a lawyer-defendant. See Roldan v. Pure Air Solutions, Inc., S.D. Fla.2010.
Moreover, there is no indication in the record that plaintiff’s counsel filed this lawsuit in an attempt to “shake down” the defendants for attorneys’ fees and costs. The case settled after discovery ended, and the defendants made an offer of judgment only after they had the opportunity to look at the evidence. Any determination that the case would have settled if plaintiff’s counsel sent a pre-suit notice to the defendants (based on the record as it appears before us) is pure speculation. In other words, pre-suit notice may not have made a difference. Moreover, at the motion hearing before the district court, Sahyers’ counsel asserted that (1) Sahyers herself made a demand on the law firm prior to litigation, and (2) he lacked the records necessary to make a pre-suit demand before filing the lawsuit. Tr. of Jan. 24, 2008 Mot. Hr’g at 21:19-23 (arguing that had the defendants deposed Sahyers, “she would have testified that she did ask for her money”); id. at 22:12-18 (arguing that “[plaintiff’s counsel] did not have access to [Sahyers’] time records”).
While counsel’s arguments are not evidence, an evidentiary hearing would prove or disprove these assertions. The district court made no specific factual findings based on any evidence regarding, for example, bad faith on behalf of the plaintiff or the necessity of the litigation. The Sahyers opinion relied solely on plaintiff’s counsel’s failure to give pre-suit notice. Since we have held that “an inquiry into a party’s bad faith is best conducted by the district court,” Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1438 (11th Cir.1998), I would at least have remanded this case back to the district court for an evidentiary hearing with instructions to engage in the lodestar analysis.
A district court retains the discretion to determine or to set a reasonable attorney’s fee under the FLSA, but the district courts, in my view, lack the discretion to deny all fees and costs by way of a “special circumstances” exception to promote collegiality. I agree completely with the efforts of the distinguished district judge to seek to promote professionalism and civility in the practice of law. It is an important component of judicial administration. I also agree that this Court was well-intentioned in deferring to the district court’s discretion; however, I fear that we went too far. My primary concern is with the precedent this case now creates: It is now within the discretion of district courts in our Circuit to deny attorney’s fees to lawyers who fail to extend professional courtesies to lawyer-defendants in FLSA and (presumably other) civil rights cases. This new law will undoubtedly discourage public interest lawyers from taking these cases. Although the plaintiff prevailed in her FLSA claim, her lawyer was unable to recover any fees or his client’s costs as mandated by Congress. I would prefer that the full Court consider this appeal before creating this new precedent.”
Many legal scholars have already voiced their opinion that this case is likely headed to the United States Supreme Court for ultimate decision. Stay tuned, because this one is likely not done yet.
E.D.Va.: Applicant For A Job May Not Assert An Action For FLSA Retaliation, Because Not A Covered “Employee” Of The Potential Employer
Dellinger v. Science Applications Intern. Corp.
This case was before the Court on a Motion to Dismiss filed by Defendant. Plaintiff alleged that Defendant violated the anti-retaliation provision of the Fair Labor Standards Act (“FLSA”) codified at 29 U.S.C. § 215(a)(3), by refusing to hire her after they received notice that she had filed a separate FLSA action against a former employer. Defendant moved to dismiss on the basis that Plaintiff was never an “employee” of Defendant, and the Court granted Defendant’s Motion on this basis.
The Court reasoned:
“In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue [,] judicial inquiry into the statute’s meaning, in all but the most extraordinary circumstance, is finished.” Ramey v. Director, office of Workers’ Compensation Program, 326 F.3d 474, 476 (4th Cir.2003)(citing Estate of Cowart v. Nicklos Drilling Co. ., 505 U.S. 469, 475, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992)). The statute at issue here, 29 U.S.C. § 215 states, in pertinent part:
(a) [I]t shall be unlawful for any person …
(3) to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter …
29 U.S.C. § 215 (emphasis added). Congress chose to define “employee” as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). For an individual to be “employed” by an “employer” they must be “suffer[ed] or permitt[ed] to work.” 29 U.S.C. § 203(g). Here, Plaintiff was never “permitted” to work for SAIC, in fact, her main allegation is that the offer of employment was withdrawn. (See Compl. ¶ 34.).
The two district courts that have addressed this issue have found that a job applicant should not be considered an “employee” for purposes of the anti-retaliation provision of the FLSA. In Harper v. San Luis Valley Regional Medical Center, an applicant for a nursing position at defendant hospital was involved in an unrelated federal wage claim suit against several municipalities. Harper, 848 F.Supp. 911 (D.Colo.1994). The hospital hired several allegedly less qualified individuals over plaintiff Harper and Harper filed suit alleging FLSA retaliation. In reaching its decision the Court specifically relied on the plain language of the statute, noting that “where a statute names parties who come within its provisions, other unnamed parties are excluded.” Id. at 913-914 (D.Colo.1994) (citing Foxgord v. Hischemoeller, 820 F.2d 1030, 1035, cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 502, (9th Cir.1987); See Contract Courier Services, Inc. v. Research and Special Programs Admin. of U.S. Depart. of Transp., 924 F.2d 112, 114 (7th Cir.1991)(holding “statutory words mean nothing unless they distinguish one situation from another; line-drawing is the business of language”). The Court in Harper held that § 215(a)(3) “specifically identifies those individuals who come within its provisions i.e. employees. Therefore, other unnamed parties such as non-employee job applicants are excluded from its protection.” Harper, 848 F.Supp. at 914.
In the similar case of Glover v. City of North Charleston, plaintiff was also the lead plaintiff in a separate FLSA wage and hour suit against the North Charleston (Fire Dept.) District. Glover, 42 F.Supp. 243 (D.S.C.1996). After Glover brought suit against the District, the District Fire Department was disbanded and the City of North Charleston Fire Department was formed; however, the City had discretion to determine which of the District Department’s employees would be hired. Id. at 245. In his suit against the City, Glover alleged a violation of § 215(a)(3) claiming the City’s decision not to hire Glover was retaliation for his earlier FLSA claims. In dismissing the case, the Glover court found that plaintiffs were job applicants and thus not yet “employees” within the meaning of the Act. Id. at 246.
In so doing, the Court drew a careful distinction between § 215‘s initial language holding that it “shall be unlawful for any person ” to commit certain acts (§ 215(a)), and more limited language of the provision at issue here, protecting “any employee ” from the person’s misconduct (§ 215(a)(3)). Id. at 245-246 (emphasis added). The court found that the statute’s application to “any person” did not bar suit against the “non-employer” City, however, the plain language of the statue restricting its protections to “any employee” did mean that a mere job “applicant” did not have standing to bring a § 215 action. Id. As the Glover court found, the first sentence of the statute applies to “any person,” if “Congress wanted to cover non-employees, it could have written § 215(a)(3) to prevent discrimination [or retaliation] against “any person” instead of “any employee.” Id. at 246-247. Based on the plain language of the statute, the courts that have considered the issue have found that § 215(a)(3) does not cover job applicants.
Plaintiff attempts to distinguish these cases as outliers and non-binding on this Court. As decisions from other Districts they are clearly not binding precedent, however, their reasoning is, contrary to Plaintiff’s argument, applicable here. Both opinions rest on the plain language of the statute and both were unwilling to read the term “employee” to mean an individual who was never employed the Defendant.
Defendant points to the leading Fourth case regarding the sufficiency of an anti-retaliation claim under FLSA, Darveau v. Detecon, Inc., 515 F.3d 334 (4th Cir.2008.) In the Fourth Circuit, to assert a prima facie claim of retaliation under the FLSA a plaintiff must show: “that (1) he engaged in an activity protected by the FLSA; (2) he suffered adverse action by the employer subsequent to or contemporaneous with such protected activity; and (3) a causal connection exists between the employee’s activity and the employer’s adverse action.” Darveau v. Detecon, Inc., 515 F.3d 334, 340 (4th Cir.2008) (citing Wolf v. Coca-Cola Co., 200 F.3d 1337, 1342-43 (11th Cir.2000); Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1394 (10th Cir.1997)). Similarly, Defendant argues that as the Fourth Circuit standard requires a “casual connection” between the “employee’s activity” and the “employer’s” action, Plaintiff has no standing to bring suit as she was never an “employee.” (Mem. in Supp. Mot. to Dismiss at 4.) Without reading beyond the plain language of the statute, a job applicant cannot be considered an ’employee.’ ”
Although not highlighted here, the Court also rejected several alternative arguments put forth by Plaintiff, that the Court should look beyond the FLSA, to statutory definitions and construction of Title VII and the NLRA statutes.
5th Cir.: Defendants’ Purported Day-Rates Were Impermissible Where They Made Deductions For Partial Days Worked
Solis v. Hooglands Nursery, L.L.C.
This is an appeal from the district court’s order granting summary judgment for Plaintiff on behalf of various employees of Defendants. The district court held that the Defendants violated the overtime and record-keeping provisions of the Fair Labor Standards Act (“FLSA”). The Defendants appealed the district court’s order as it relates to its non-salaried employees, arguing that there were genuine issues of fact regarding whether their day rate plan was invalid under the FLSA and whether they acted in good faith. Discussing each basis for summary judgment in turn, the 5th Circuit affirmed.
Briefly discussing Defendants’ purported day-rate methodology, the Court explained:
“Appellants first argue that there remained a genuine issue of fact regarding whether their day-rate method of paying their employees met the standards of 29 C.F.R. § 778.112. However, Appellants concede both before the district court and on appeal that their employees’ wages were reduced when the employees worked less than a full day. Accordingly, Appellants did not have a valid day-rate plan in use, and their failure to pay their employees overtime compensation pay for time worked beyond forty hours per week violated 29 U.S.C. § 207(a)(1).”
Next the Court discussed the issue of unpaid fifteen minute breaks.
“Appellants next concede that they failed to pay their employees for two fifteen-minute breaks per day, in violation of the FLSA. Nevertheless, Appellants argue that their purported overpayment to their employees as part of their day-rate plan compensated for the shortfall, pursuant to 29 C.F.R. § 778.202(a). However, as the district court properly held, Appellants did not employ a valid day-rate plan, because they reduced employees’ pay for hours they did not work. Accordingly, the district court properly concluded that Appellants remain liable for the amounts deducted from their employees’ compensable break periods.”
Last the Court discussed the award of liquidated damages, and the fact that the Court was entitled to award liquidated damages, notwithstanding a showing of both subjective and objective good faith.
“Finally, Appellants argue that even if they violated the FLSA by not implementing a proper day-rate plan and failed to pay proper overtime compensation, there remained a question of fact as to whether Appellants’ failures were in good faith, thus precluding an award of liquidated damages. Liquidated damages are awarded as a matter of course for violations of 29 U.S.C. § 207. See 29 U.S.C. § 216(b). Pursuant to 29 U.S.C. § 260, however, a district court may decline to award liquidated damages if the employer demonstrates that it acted reasonably and in good faith. Heidtman v. County of El Paso, 171 F.3d 1038, 1042 (5th Cir.1999). Nevertheless, even if a defendant shows both subjective good faith and objective reasonableness, an award of liquidated damages remains in the discretion of the district court. See § 260; Heidtman, 171 F.3d at 1042. After reviewing the record, the district court correctly held that Appellants “ha[ve] submitted no evidence that [their] reliance on a bookkeeper with no managerial authority to ensure [their] compliance with the FLSA was reasonable.” Accordingly, Appellants have not carried their burden of showing good faith, and an award liquidated damages was proper.”
11th Cir.: “Dual Assignment” Regulation Still In Full Affect; Whether An Employee With Police And Fire Duties Is Entitled To Overtime Based On Which Duties Take Up Majority Of Working Time
Cremeens v. City of Montgomery
The Appellants, fire investigators for the City of Montgomery’s fire department, appealed the dismissal via summary judgment of their collective action seeking overtime pay from the city. Their appeal raised the question of the continuing validity of the Department of Labor’s dual assignment regulation, which addresses overtime for firefighters who perform law enforcement duties. The Eleventh Circuit concluded that the regulation remains valid and therefore, reversed the judgment of the district court.
In addition to describing the Plaintiff’s firefighting duties and fire suppression training, the Court explained that, “Fire investigators investigate fires involving loss of life, arson and other crimes, and multiple fire alarms. They gather physical evidence, interview witnesses, interrogate suspects, and testify in court. They have the power to make arrests without first calling the Montgomery police department. Candidates for the job of fire investigator must graduate from state and national fire investigation academies; graduate from the Montgomery police academy; and be certified by the state as a peace officer. Candidates also must pass continuing education and firearms qualifications.” Thus, the record demonstrated that Plaintiffs perform both police duties and firefighting duties.
Reasoning that the “Dual Assignment” Rule continued in full effect, notwithstanding the revised definition of those engaged in firefighting duties (and thus exempt), the Court explained:
“Similarly, because the plain language of the dual assignment regulation does not purport to alter § 203(y)’s definition of an employee engaged in fire protection activities, it skirts the province of § 203(y) and does not conflict with it. The simpler reading of the dual assignment regulation is that it dictates how to apply the overtime rules to those employees who have already satisfied the definitions both for fire protection and law enforcement. The dual assignment regulation does no defining. It is fair to say that while § 203(y) defines, the dual assignment regulation applies.
This analysis explains why our well-reasoned precedents in Huff and Gonzalez do not control here. For one, neither of those cases addressed the dual assignment regulation. Rather, those cases held that the regulatory definition of fire protection activities and the 80/20 rule by their texts purported to alter § 203(y)’s definition of an employee engaged in fire protection activities. The 80/20 rule stated, after all, that “[a] person who spends more than 20 percent of his/her working time in nonexempt activities is not considered to be an employee engaged in fire protection or law enforcement activities for purposes of this part.” 29 C.F.R. § 553.212(a) (emphasis added). Therefore the regulations had to yield to the statute, and were deemed obsolete. And lastly, the analysis in Huff and Gonzalez centered on whether the plaintiffs there satisfied § 203(y)’s requirement for a “responsibility” to fight fires. Here, the plaintiffs have already conceded § 203(y) applies to them.
The city nevertheless urges us to apply a broader interpretation of Huff and Gonzalez to this case-to conclude that § 203(y) mandates, without exception, firefighter overtime for anyone who fits the statute’s definition of firefighter. The city argues that the dual assignment regulation must fall because it creates an exception to § 203(y). It essentially claims that what the 80/20 regulation did through its text, the dual assignment regulation does in its effect. Therefore, concludes the city’s argument, the dual assignment regulation poses a “direct conflict” to the operation of § 203(y). The district court adopted this line of reasoning, concluding that 29 C.F.R. § 553.213(b) “further refined” § 203(y)’s definition of an employee in fire protection activities in the same way the 80/20 rule did. Mem. Op. and Order 12. The district court concluded that the dual assignment regulation posed an “inherent conflict” with § 203(y). Id. 13.
We find no conflict between § 203(y) and the dual assignment regulation, and we reject the broader reading of Huff and Gonzalez that the city urges. The plain words of the regulation create no problematic interaction with the statute, in the way the regulations at issue in Huff and Gonzalez did. Therefore those cases do not control the outcome here.
We also note that in order to effectuate the FLSA, Congress, in passing § 203(y), clearly relied on the existence and operation of numerous pre-existing DOL regulations. One such regulation, by way of example, is regulation 29 C.F.R. § 553.230, which specifies the numerical overtime ceilings for firefighters and law enforcement employees. It is not unreasonable to conclude that Congress, in passing § 203(y), was also aware of the dual assignment regulation, implicitly relied on it, and thereby ratified its continuing application.
One last issue bears addressing. The district court identified a second ground for finding the dual assignment regulation obsolete: the dual assignment regulation invokes the obsolete regulations for fire protection activities and the 80/20 rule. However, we do not find such citation, by itself, disabling. Rather, it is easy to read the dual assignment regulation as importing and applying § 203(y)’s updated statutory definition of an employee in fire protection activities as seamlessly as it once applied the now-obsolete regulatory definition. And, the mention of the 80/20 rule in 29 C.F.R. § 553.213(a) has no bearing on the operation of the dual assignment provision in 29 C.F.R. § 553.213(b).”
Thus, the Court held that the “dual assignment” regulation, which provides that, when public employee qualifies both as fire protection and law enforcement personnel, he receives overtime according to rules for activity that takes up majority of his working time, was not definitional and did not conflict with updated statutory definition of “[e]mployee in fire protection activities,” so as not to be rendered obsolete by amendment of statute.
The full opinion is available at Cremeens v. City of Montgomery.
11th Cir.: Although § 255(a)’s Statute Of Limitations Is An Affirmative Defense That Must Be Specifically Pled, Defendants Sufficiently Did So With Language Referencing 2-3 Year Period In Their Pleadings
Following a jury verdict in favor of the Defendants, the Plaintiff appealed, based on a jury instruction the Court gave regarding the FLSA’s 2-3 statute of limitations. Specifically, the Plaintiffs asserted that the Court erred in giving an instruction framing the applicable limitations period, because Defendants had failed to specifically plead statute of limitations as an affirmative defense. However, construing Defendants’ pleadings in the case, as described below, to have pled such an affirmative defense, the Court affirmed the lower Court’s jury verdict, based on the instruction at issue.
The Eleventh Circuit explained:
“The district court instructed the jury as follows:
The Plaintiff is entitled to recover lost wages from the present time back to no more than two years before this lawsuit was filed on June 18, 2008, unless you find the employer either knew, or showed reckless disregard for the matter of whether its conduct was prohibited by the FLSA. If you find that the employer knew, or showed reckless disregard for the matter of whether its conduct was prohibited by the FLSA, the Plaintiff is entitled to recover lost wages from the present time back to no more than three years before this lawsuit was filed.
The jury answered “no” to the first question on the verdict form, concerning whether Appellees failed to pay Navarro overtime wages as required by law. Thereafter, Navarro filed this appeal.
On appeal, Navarro urges that the district court’s application of § 255(a)‘s limitation was improper because Appellees had waived the limitation by failing to properly plead it in their Answer. Appellees, on the other hand, urge that § 255(a) is not a traditional statute of limitations that must be raised as an affirmative defense. In the alternative, they claim that they adequately raised the limitation in their Answer and in the pretrial stipulations submitted to the district court.
The Court reviews a district court’s instructions to the jury for abuse of discretion. U.S. v. Lopez, 590 F.3d 1238, 1247-48 (11th Cir.2009). The Court reviews de novo a district court’s grant of a F.R.Civ.P. 50 motion for judgment as a matter of law. D’Angelo v. Sch. Bd., 497 F.3d 1203, 1208 (11th Cir.2007).
This Court has held that the § 255(a) statute of limitations is “an affirmative defense which must be specifically pled.” Day v. Liberty Nat’l Life Ins. Co., 122 F.3d 1012, 1015 (11th Cir.1997) (citing F.R.Civ.P. 8(c)). In Day, the Court ruled that the defendant had waived the § 255(a) statute of limitations by failing to assert it until after the jury had rendered a verdict. As a result, the Court reversed the district court’s grant of a judgment notwithstanding the verdict based on the statute of limitations defense. Id. at 1015-16 The Day Court emphasized the fact that the defendant’s failure to raise the defense until after the jury rendered a verdict deprived the plaintiff of the opportunity to contest the application of the limitation. Id. at 1015 (“[I]f [the defendant] had brought the limitations issue to the court during the … trial, [the plaintiff] could have offered evidence that the statute was tolled during some period of time, or have insisted that the jury instructions reflect the effect of the statute of limitations on any possible recovery by him.”). In finding a waiver, the Day Court relied on the Fifth Circuit’s earlier opinion in Pearce v. Wichita County, 590 F.2d 128, 134 (5th Cir.1979). The Pearce Court had addressed a situation almost identical to that in the Day case. In Pearce, the defendant had not raised the statute of limitations defense in its pleadings or in objection to the court’s jury instructions. Id. It had waited until after the jury verdict, finally bringing the limitations issue to the Court’s attention in a motion for judgment notwithstanding the verdict. Id. The Pearce Court held that such a delay constituted waiver of any objection to the limitations period that was applied. Id.
The case at hand is clearly distinguishable from the Day and Pearce cases, however, as Appellees raised § 255(a) several times before the case was submitted to the jury. First, Appellees stated in their Answer (under the heading “Affirmative Defenses”) that “[a]ny violation of the [FLSA] by Defendants was not willful, and was wholly unintentional. Defendants continuously acted in good faith with regard to the administration of its [sic] pay plan.” Next, more than a month before trial, the two-or-three-year limitation was referenced more than once in the parties’ Joint Pretrial Stipulation. Specifically, under the heading “Defendants’ Statement of the Case,” Appellees stated that “Defendants dispute … that Plaintiff was not paid for any overtime he may have worked during the last two or three years of his employment.” Also, in the Stipulation, the parties stated that the following fact was agreed upon and would not require proof at trial: “The corporate Defendant grossed in excess of $500,000.00 per year during the last three years of Plaintiff’s employment.” Finally, the parties and the court addressed this matter during trial, when, following the close of Navarro’s case, the Appellees based several motions for directed verdict on the three-year maximum limitations period. Navarro’s counsel, armed with case law, responded with the contention that the Appellees had not pled § 255(a) as an affirmative defense. The Court reviewed the proffered case, but ultimately ruled that § 255(a) would apply so that, at most, Navarro would recover for a three-year time period. Thus, this case stands in stark contrast to the Day and Pearce cases, where defendants had waived the defense by not raising it until after the jury had rendered a verdict.
The Court finds that Appellees timely raised the § 255(a) statute of limitations. Even if Appellees’ assertions in their Answer did not comply with a strict reading of F.R.Civ.P. 8(c), under this Court’s precedent, the limitation was still not waived. That is, although Rule 8(c) requires that a statute of limitations defense be raised as an affirmative defense, this Court has noted that “the purpose of Rule 8(c) is to give the opposing party notice of the affirmative defense and a chance to rebut it,” and, as a result, “if a plaintiff receives notice of an affirmative defense by some means other than the pleadings, ‘the defendant’s failure to comply with Rule 8(c) does not cause the plaintiff any prejudice.’ “ Grant v. Preferred Research, Inc., 885 F.2d 795, 797 (11th Cir.1989) (quoting Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir.1988)). In Grant, the defendant raised the statute of limitations defense for the first time in a motion for summary judgment filed approximately one month before trial. Id. This court ruled that, because the plaintiff was “fully aware” that the defendant intended to rely on the defense, and because the plaintiff did not assert any prejudice from the lateness of the pleading, the defendant’s failure to comply with Rule 8(c) did not result in a waiver. Id. at 797-98.
As demonstrated above, in this case, Navarro was given ample notice of Appellees’ intent to rely on § 255(a) in several instances prior to trial. Moreover, when the issue was debated in light of the Appellees’ directed verdict motions, Navarro’s counsel made a thorough argument (including case citations) against the statute’s application. He never claimed during that argument that he had been surprised or somehow otherwise prejudiced by defense counsel’s reliance upon § 255(a) at trial. As a result, the district court did not err in limiting the jury’s consideration of unpaid overtime to the two-or three-year period prior to the filing of the complaint. Further, because it was uncontested that there was no evidence that Domingo or Rosa Santos exercised any active supervisory control over the company for the period three years prior to the filing of the complaint, the district court did not err in granting Appellees’ motion for judgment as a matter of law on the issue of the individual liability of either of them. Accordingly, we affirm the judgment entered on the jury’s verdict.”
N.D.Ga.: “Yard Hostler” Not Exempt Under The Motor Carrier Act; Defendant Failed To Show That He “Affected The Safety Or Operation Of Motor Vehicles In Transporting Property In Interstate Or Foreign Commerce On The Public Highways”
Billingslea v. Southern Freight, Inc.
The case was before the Court on Defendant’s motion for summary judgment. Defendants’ sought summary judgment finding that Plaintiff, a “yard hostler,” was exempt from the overtime provisions of the FLSA. Although it was not disputed that Defendant was/is a Motor Carrier, subject to the MCA, the Court determined that Defendant had failed to demonstrate that Plaintiff was individually exempt, because there was no showing that as a “yard hostler” he “affected the safety of operation of motor vehicles in transporting property in interstate or foreign commerce on the public highways.” Therefore, Defendant’s motion was denied.
The Court highlighted the following applicable facts:
“Defendant employed Plaintiff as a “yard hostler” at the Nestle distribution facility from August 2008 until November 2008, when he voluntarily resigned [Doc. 22-2, ¶ 20]. Prior to his employment, Defendant required Plaintiff to undergo a drug test and satisfy various physical requirements, consistent with standards set by the Department of Transportation [Doc. 22-2, ¶ 9]. Plaintiff satisfactorily completed the drug test and met the physical requirements [Doc. 22-2, ¶ 10]. Also, prior to his employment, Plaintiff was trained in relevant safety procedures and protocols for his position and acknowledged in writing that he received training on those procedures [Doc. 22-2, ¶ 11].
As a yard hostler at the Nestle distribution facility, Plaintiff drove a “hostler tractor,” which he connected to freight trailers in order to transport the trailers from a staging area to loading docks at the facility [Doc. 22-2, ¶ 12]. Once Plaintiff moved a given trailer to the distribution facility loading dock, the freight in that trailer would be unloaded into the facility; afterwards, Plaintiff would use a hostler tractor to return emptied trailers to the staging area [Doc. 22-2, ¶ 13]. Nothing in the record indicates that Plaintiff ever drove a hostler tractor or any trucks on a public roadway or interstate highway, or that Defendant ever assigned Plaintiff the duty of driving any vehicles on a public roadway or interstate highway. Instead, the record indicates that Plaintiff performed all of his duties as a yard hostler on private property at the distribution facility.
In addition to his core duties, Plaintiff performed various additional tasks designed to promote safety at the distribution facility. At the start of each of his shifts, Plaintiff inspected his assigned hostler tractor for any noticeable maintenance or damage issues [Doc. 22-2, ¶ 14]. If any such issues existed, he reported them to an on-site administrator and made a written report detailing the issues [Doc. 22-2, ¶ 14].
Plaintiff also inspected trucks, trailers, and freight that arrived at the distribution facility. When Plaintiff received refrigerated trucks that he was assigned to transfer, he ensured that the fuel and temperature levels of the truck remained satisfactory during the transfer [Doc. 22-2, ¶ 15]. When Plaintiff received a sealed freight trailer, he often used a bolt cutter to break the trailer’s seal and opened one of the trailer’s back doors before backing the trailer onto the loading dock [Doc. 22-2, ¶ 16]. After opening the back door of a given trailer, Plaintiff would assess whether the freight inside the trailer had shifted during transport or posed any danger to unloaders [Doc. 22-2, ¶ 16]. Plaintiff also inspected trailers that he transported for any noticeable damage, such as broken taillights or flat tires [Doc. 22-2, ¶ 19]. Plaintiff reported such damage to the administrative office and would then move the trailer to the maintenance area of the distribution facility yard [Doc. 22-2, ¶ 19].
When other yard hostlers backed trailers up to the distribution facility’s loading dock, Plaintiff helped “spot” those trailers [Doc. 22-2, ¶ 17]. When Plaintiff backed trailers up to the loading dock, he often chocked the trailer tires to ensure that the trailer did not slide or roll unintentionally after being parked at the loading dock [Doc. 22-2, ¶ 18].
Defendant compensated Plaintiff on an hourly basis and internally classified him as exempt from the overtime compensation requirements of the FLSA, based on its interpretation of an exemption provision in the MCA [Doc. 22-2, ¶ 23].
Defendant and SFI clearly fall into the class of employers whose motor-vehicle transportation the Secretary of Transportation could, and did, regulate. In viewing the evidence in the light most favorable to Plaintiff, however, the Court concludes that Defendant has not borne its burden of showing that Plaintiff, through the actual work that he performed as a yard hostler, “plainly and unmistakably” fell within the terms of the motor carrier exemption to the overtime compensation requirement found in the FLSA. Hodgson, 472 F.2d at 47.”
After discussing the application of the MCA to drivers, driver’s helpers, loaders and/or mechanics, the Court held that Defendant had failed to show Plaintiff, a “yard hostler,” was individually covered by the MCA, because Defendant’s had failed to show that his work affected the safety of operations of motor vehicles in transporting property in interstate or foreign commerce on the public highways. In doing so, the Court drew a clear line between simply safety involved internally at Defendant’s facility, and the safety involved in operating the vehicles outside, on public roadways, in interstate commerce.
“Defendant emphasizes the numerous safety-related activities that Plaintiff undisputedly undertook as a yard hostler and stresses the effect that those activities arguably had on the safe operation of trucks and trailers used to transport property through interstate commerce. But the second prong of the motor carrier exemption test contains two wholly independent parts. To bear its burden of showing that Plaintiff fell within the motor carrier exemption, Defendant was required to show that Plaintiff performed the work of either a driver, driver’s helper, loader, or mechanic, and that such work directly affected the safety of operation of motor vehicles in transporting property in interstate or foreign commerce on the public highways. Though the record reflects that some of Plaintiff’s activities as a yard hostler promoted the safe operation of trucks and trailers transporting property through interstate commerce, nothing in the record indicates that those activities were those of a driver, driver’s helper, loader, or mechanic as defined by the FLSA regulations. Without more, the Court finds summary judgment in Defendant’s favor on the basis of the motor carrier exemption inappropriate.”
Growth of Unpaid Internships May Be Illegal, New York Times Reports
Today’s NY Times reports that there is a growing trend of employers, who illegally deem workers, entitled to be paid at least minimum wage, to be unpaid “interns.”
The article reports that, “[w]ith job openings scarce for young people, the number of unpaid internships has climbed in recent years, leading federal and state regulators to worry that more employers are illegally using such internships for free labor.
Convinced that many unpaid internships violate minimum wage laws, officials in Oregon, California and other states have begun investigations and fined employers. Last year, M. Patricia Smith, then New York’s labor commissioner, ordered investigations into several firms’ internships. Now, as the federal Labor Department’s top law enforcement official, she and the wage and hour division are stepping up enforcement nationwide.
Many regulators say that violations are widespread, but that it is unusually hard to mount a major enforcement effort because interns are often afraid to file complaints. Many fear they will become known as troublemakers in their chosen field, endangering their chances with a potential future employer.”
To read the entire article, click here.
M.D.Fla.: Compensatory Damages Available To Plaintiff In FLSA Retaliation Claim
Vaccaro v. Custom Sounds, Inc.
This case was before the Court, following Defendant’s default. The Court set the matter for an evidentiary hearing on the issue of damages to be awarded in the final default judgment. Of significance the Court ruled that an employee terminated in retaliation for engaging in FLSA protected activity may recover non-economic or compensatory damages.
Discussing the issue of compensatory damages the Court stated:
“In addition to lost wages as a result of retaliation, Plaintiff seeks compensatory damages in the amount of $10,000.00 for emotional distress associated with the retaliation. See Total Damages Calculation. The damages provision for retaliation claims does not speak directly to compensatory damages for emotional distress, but states that the employer “shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of [the anti-retaliation provision] …” 29 U.S.C. § 216(b).
At least two judges in the Middle District of Florida have come to apparently opposite conclusions regarding whether compensatory damages for emotional distress are available pursuant to section 216(b). The Court in Bolick v. Brevard County Sheriff’s Dept. held that “[p]unitive and emotional damages are not available under the FLSA” and granted partial summary judgment to a defendant on the issues of punitive and emotional damages. 937 F.Supp. 1560, 1566-67 (M.D.Fla.1996). Since then, in Bogacki, the Court was faced with the issue of whether the retaliation provision of the FLSA provides for compensatory damages as a result of emotional distress. 370 F.Supp.2d at 1201-02. The Bogacki Court referenced the Sixth Circuit’s recognition in Moore v. Freeman, 355 F.3d 558, 564 (6th Cir.2004) that the Seventh Circuit, the Eighth Circuit, and the Ninth Circuit “directly or indirectly have allowed emotional distress awards under the FLSA to stand.” Bogacki, 370 F.Supp.2d at 1203 (internal citations omitted). Ultimately, the Bogacki Court determined that “each [retaliation] case should stand or fall on its own merit” and denied without prejudice a defendant’s motion for summary judgment on mental anguish damages because “neither party ha[d] addressed the strength, weakness, or absence of any evidence of the Plaintiff’s alleged emotional distress …” Id. at 1205-06.
Here, the Court has previously found that Defendants admitted, by defaulting, that “Plaintiff suffered emotional distress as a result of his termination.” Order (Doc. No. 19) at 2. Notwithstanding this factual finding, the Court recognized that “allegations relating to the amount and character of damages are not admitted by virtue of default. Rather, the Court determines the amount and character of damages to be awarded.” Id. at 3 (internal citation omitted). In assessing the issue of damages available for a retaliation claim, it is not entirely clear whether the Eleventh Circuit would approve awarding compensatory damages for emotional distress; however, the Court’s analysis in Bogacki, combined with other circuits’ approval of such damages and the Eleventh Circuit’s handling of the issues presented in Olivas, leads the undersigned to believe that the Eleventh Circuit would conclude that compensatory damages for emotional distress can be awarded in FLSA cases.
Plaintiff testified his employer fired him as a result of his inquiry regarding unpaid overtime. When Plaintiff attempted to pick up his last paycheck, Plaintiff was told to “take it out of [his employer’s] a* *.” No other egregious actions were undertaken or words spoken by the employer.
During his unemployment, Plaintiff was engaged to be married, had a two-year-old daughter, and had to rely on his parents to support his family. Plaintiff stayed with his soonto-be father-in-law. Plaintiff’s “mother” helped him pay for necessaries, his cellular phone bill, and insurance. According to Plaintiff, these stressful events caused him to be upset and embarrassed. The events “took a toll” on his relationship with his fiancé. The undersigned credits Plaintiff’s testimony in this regard. However, considering Plaintiff’s testimony in the framework of other cases in which courts have considered appropriate amount of damages for emotional distress claims, the undersigned finds as a factual matter that based upon the harm suffered by Plaintiff, $5,000.00 is a fair and reasonable amount. See Perez v. Jasper Trading, Inc., No. 05 CV 1725(ILG)(VVP), 2007 WL 4441062, at *8 (E.D.N.Y. Dec. 17, 2007) (unpublished) (recognizing emotional distress awards involving facts similar to those in that case “usually range from $5,000 to $30,000”) (internal citations omitted). Although it is undeniable that Plaintiff suffered some form of emotional distress (and indeed the Court has already so found), the facts of this relatively unremarkable FLSA case do not warrant an award of $10,000.00 for such distress. Accordingly, the undersigned recommends awarding $5,000.00 in compensatory damages for emotional distress.”
S.D.N.Y.: Plaintiff Not Exempt Under “Air Carrier” Exemption To FLSA, Because Employer Failed To Show It Was “Directly Or Indirectly Owned Or Controlled By… A Carrier Or Carriers,” As Required For RLA Coverage
Cunningham v. Electronic Data Systems Corp.
This case was before the Court on Defendant, Electronic Data System’s (“EDS”) second Motion for Summary Judgment, seeking a finding that Plaintiff was exempt from the FLSA under the so-called “Air Carrier” Exemption. After a lengthy discussion of the history and application of the “Air Carrier” Exemption, which exempts any employee of a company covered by the Railway Labor Act (“RLA”) from FLSA coverage, the Court found the exemption inapplicable to the Plaintiff, because Defendant failed to prove that it was “directly or indirectly owned or controlled by, or under common control with, a carrier or carriers.”
Reaching its decision, the Court reasoned:
“The RLA defines the scope of its coverage of carrier affiliates with the following language:
The term ‘carrier’ includes … any company which is directly or indirectly owned or controlled by or under common control with any carrier by railroad [or air] and which operates any equipment or facilities or performs any service (other than trucking service) in connection with the transportation, receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage, and handling of property transported by railroad [or air].
The National Mediation Board (“NMB”), the agency charged with administering the RLA, formulates this statutory language into the following test:
When an employer is not a rail or air carrier in the transportation of freight or passengers, the NMB applies a two-part test in determining whether the employer and its employees are subject to the RLA. First, the NMB determines whether the nature of the work is that traditionally performed by employees of rail or air carriers-the function test. Second, the NMB determines whether the employer is directly or indirectly owned or controlled by, or under common control with, a carrier or carriers-the control test. Both parts of the test must be satisfied for the NMB to assert jurisdiction.
In re Int’l Cargo, 31 NMB at 406 (citations omitted). This test is now well-established in the agency’s case law and, as the Court noted in its prior opinion, courts defer to it as the proper construction of the statute. Cunningham, 579 F.Supp.2d at 542;District 6, 139 F.Supp.2d at 561.
Though the NMB’s interpretation of the RLA governs this case, the FLSA context remains relevant in one crucial sense. It is well-settled that “exemptions to the FLSA are narrowly construed against [ ] employers.” Bilyou v. Dutchess Beer Distribs., Inc., 300 F.3d 217, 222 (2d Cir.2002) (internal quotations omitted). As a matter of substantive law, it is not apparent how that doctrine should fit into the Court’s analysis, because by the statute’s plain language the FLSA’s air carrier exemption and the RLA are coextensive. 29 U.S.C. § 213(b)(3). It would be strange to apply the RLA’s definition of “carrier” differently in FLSA cases than in RLA cases, and other courts have not done so. See Verrett, 70 F.Supp.2d at 1281-83;Slavens v. Scenic Aviation, Inc., 221 F.3d 1353, at *1 (10th Cir.2000). However, though the FLSA context would not seem to alter the substance of applicable RLA law, the narrow standard of construction for FLSA exemptions does have an important procedural impact-it charges the employer with the burden of proving that an exemption applies. Cunningham, 579 F.Supp.2d at 540;Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir.1991) (“[A]n employer bears the burden of proving that its employees fall within an exempted category of the [FLSA].”). Thus, summary judgment is only appropriate here if EDS has submitted enough undisputed evidence to prove that it meets both the “function” and “control” prongs of the NMB’s carrier-affiliate test. See Martin, 949 F.2d at 616. EDS has met this burden with respect to the function prong but not with respect to the control prong.
EDS plainly satisfies the function prong. The controlling inquiry is “whether the nature of the work is that traditionally performed by employees of rail or air carriers.” In re Int’l Cargo, 31 NMB at 406. As the agency applies the test, any work that proximately advances the carrier’s commercial transportation services, even if that work is not inherently aviation-related, satisfies the standard. Thus, employers that provide sky-cap, janitorial, shuttle-bus, and cargo-handling services have all been found to satisfy the function prong. Id. at 406 (cargo-handling); In re Kanonn, 31 NMB 409, 417 (June 18, 2004) (janitorial and sky-cap services); In re Air Serv Corp., 35 NMB at 210 (shuttle-bus). The focus of the test is whether the carrier affiliate’s services are sufficiently connected to the carrier’s commercial transportation operations that a work stoppage at the carrier affiliate would impede those operations. See Verrett, 70 F.Supp.2d at 1281 (finding that employer that provided IT services to American Airlines met the function prong) (“When the activities of carrier affiliates are necessary to the operations of an air carrier, and a labor dispute at the affiliate could cripple airline operations, those affiliates must be subject to the RLA because such disruption is the very type of interruption to air commerce the RLA was designed to prevent.”); In re Milepost Indus ., 27 NMB 362, 366 (May 9, 2000) (function prong satisfied where employer’s work was “an integral part of the carrier’s business.”).
Like the employer in Verrett, which also provided IT services to American, EDS provides American with services that are crucial to the airline’s commercial operations. (Shanks Decl. ¶ 3.) In fact, EDS’s services to American are more or less the same as the services found to pass the “function” prong in Verrett: EDS acquired SABRE, the IT company at issue in Verrett, soon after that case was decided, and EDS continued thereafter to offer the airline the “same scope of IT services” that SABRE provided before the acquisition. (Arnold Decl. ¶ 4-5.) The Court agrees with Verrett ‘s reasoning that because EDS’s services, like the services SABRE provided previously, are “absolutely integral” to American’s operations, those services pass the function prong. Verrett, 70 F.Supp.2d at 1283. This conclusion finds further support in the agency opinions holding that services of more peripheral significance to air transport operations pass the function test. See, e.g., In re Dobbs Int’l Services, 34 NMB 97, at *7 (March 2, 2007) (in-flight catering); In re John Menzies, 31 NMB 490, 504 (Aug. 26, 2004) (cabin-cleaning).
The control prong requires more analysis. The relevant inquiry is whether “the employer is directly or indirectly owned or controlled by, or under common control with, a carrier or carriers.” In re Int’l Cargo, 31 NMB at 406. EDS does not claim to be owned by or under common ownership with a carrier, so it can only satisfy this prong of the test by showing that it is “controlled by” American. The Court summarized the NMB’s framework for applying this statutory language in its opinion denying defendant’s first summary judgment motion:
[I]n determining whether an entity is controlled by an air carrier, the NMB considers factors including “the extent of the carrier control over the manner in which the company conducts its business; access to the company’s operations and records; the carrier’s role in personnel decisions; the carrier’s degree of supervision over the company’s employees; the carrier’s control over employee training; [and] whether company employees are held out to the public as employees of the carrier,” John Menzies, 31 N.M.B. at 504-05, “the carrier’s role in the entity’s daily operations,” “the entity’s employees’ performance of services for the carriers,” and “the degree to which the carriers affect other conditions of employment,” Int’l Total Servs., 26 N.M.B. 72, 75.
Cunningham, 579 F.Supp.2d at 542 (alterations omitted). Not addressed in this summary is the threshold issue of whether the NMB’s control analysis should apply to EDS as a single corporate entity or instead to a discrete area of EDS’s operations relating to air travel. The Court considers this question, which has received surprisingly little direct attention from the NMB, infra at pages 14-16.
The NMB’s long list of control factors, though now an established feature of the agency’s precedent, does not provide precise guidance on questions of carrier control. Rather, with so many considerations in play, the line between “control” and “lack of control” blurs. The agency has determined, for example, that a sky-cap, baggage handling, cabin cleaning, and food services contractor, which gave air carriers substantial control over its personnel decisions and allowed the carriers to train its employees directly on a range of procedures, was not “controlled by” its air carrier clients. In re Ogden Aviation Serv., 23 NMB 98 (Feb. 5, 1996). On the other hand, the NMB also held that a contractor providing janitorial and sky-cap services, which accepted only limited input from the carrier as to personnel matters, but whose employees worked under close air carrier supervision, and which received its equipment and office space from the air carriers, was “controlled by” the air carriers. In re Kanonn Serv. Enter. Corp., 31 NMB 409 (June 18, 2004). Though some distinctions do exist between the cases-in Kanonn, the carriers provided equipment and office space and supervised affiliate employees more closely-it is difficult to draw a principled line between the outcomes, particularly under the NMB’s amorphous list of factors. See Ogden, 23 NMB at 107; Kanonn, 31 NMB at 417; compare also In re Huntleigh USA Corp., 29 NMB 121 (Dec. 17, 2001) (sky-cap and baggage handling contractor “controlled by” carrier).
Assessing the relative weight the NMB places on each factor brings the test into sharper focus. The factors certainly vary in importance. One in particular-the extent of the carrier’s role in the subject company’s daily operations-appears to determine the outcome in many cases. Where the carrier controls the details of the day-to-day process by which the contractor provides its services-for example, the number of employees assigned to particular tasks, the employees’ attire, the length of their shifts, and the methods they use in their work-the control prong is likely satisfied. On certain occasions, the NMB has acknowledged that this factor bears heightened significance. Ogden, 23 NMB at 104 (“[The Board] focuses on the carriers’ role in the entity’s daily operations and its effect on the manner in which employees perform their jobs.”); Int’l Total Servs., 26 N.M.B. at 75 (emphasizing the “carriers’ role in the entity’s daily operations”). Further, in every case the parties cite holding that a carrier affiliate satisfied the control prong, the air carrier exerted substantial control, on a day-to-day basis, over how affiliate employees did their jobs. See Kanonn, 31 NMB at 417 (“Delta determines how many employees work each shift and at what locations. Delta also must authorize the use of overtime and dictate the maximum hours Kanonn employees can work each month. While Delta does not directly supervise Kanonn employees, Delta managers meet with [a Kanonn supervisor] on a daily basis to review Kanonn employee performance.”).The day-to-day operational control factor is not independently dispositive; in some of the cases finding a lack of requisite control, carriers oversaw aspects of the contractor’s daily operations. See, e.g., In re Signature Flight Support, 32 NMB 214, 220 (Aug. 31, 2005) (carrier imposed “stringent demands” on employer’s fueling and towing procedures and met with employer throughout the day to discuss scheduling needs and discuss employee performance). But there is little doubt that the agency places more weight on this factor than the others on its list (such as “records access” and whether the subject employees are “held out to the public” as the carrier’s own), and it seems that, where the carrier’s control over daily operations is particularly extensive, the control prong will always be satisfied. See In re Int’l Cargo, 31 NMB 396 (cargo services employer “controlled by” carrier where carrier dictated storage and handling techniques, set requirements for performance of administrative functions, required that the contractor use a specific computer system, and determined the priority of assignments).
The carrier’s power over the subject employer’s personnel decisions is another consideration of heightened import. Cases finding a lack of requisite control usually emphasize that the carrier affiliate “hires, trains, pays, promotes, transfers, evaluates, disciplines, and if necessary, discharges” its own employees. See Ogden Aviation, 23 NMB at 106. On the other hand, carrier authority over hiring decisions and employee termination is a solid indication that the carrier “controls” the employer. Huntleigh, 29 NMB at 126 (“Southwest is entitled to request the removal of any Huntleigh employee that Southwest believes displays improper conduct.”); In re AirServ Corp., 35 NMB at 211 (“FedEx has final authority to approve or reject a[job] applicant…. [Air Serv] has [ ] never refused a request by FedEx to discipline or terminate an employee.”). This factor is not a perfect bellwether either-in Kanonn, the carrier was not heavily involved in personnel matters-but a carrier’s right to terminate employees or reverse hiring decisions seems to argue strongly for satisfaction of the control prong. See id.
Thus, though all of the NMB’s factors remain relevant to the analysis, day-to-day operational control and influence over personnel decisions do much to determine outcomes under the control prong.
The Court now turns to application of the control factors to this case. As a threshold matter, the parties disagree over the proper scope of that application. Plaintiffs argue that the control prong should apply to EDS generally, as a multi-national IT services provider with clients in a wide array of industries. Under that framework, there is little doubt that American does not “control” EDS, because EDS provides services to hundreds of non-carrier clients. Defendants, on the other hand, argue that the test should apply “solely to that portion of an employer’s business that relates to an air carrier.” (Def. Mem. at 19.) Under that view, EDS’s satisfaction of the prong would turn on whether American controls the manner in which EDS provides services to American, specifically, regardless of the extent of EDS’s non-carrier operations.
Defendants have the better argument. NMB precedent demonstrates that the agency limits application of its control-prong factors to, at the very least, the segment of an employer’s operations that relate to the carrier or carriers in question. In Argenbright Security, 29 NMB 332 (June 13, 2002), the carrier affiliate provided “security and ancillary services” through two distinct operating divisions-one that served airlines exclusively, and another that served only non-carriers. The particular set of carrier-affiliate employees at issue in the case-sky-cap workers whose union sought a ruling that the NLRA governed disputes between it and the carrier-affiliate-worked for Continental airlines at Newark airport. In finding the control prong satisfied, the NMB considered only the employer’s relationship with Continental at Newark, not its relationship with other carriers, and not its non-carrier business. Id. at 338-39. Other agency decisions show a similarly limited control analysis. See, e.g., Milepost Indus., 27 NMB at 366-67 (narrowing control analysis to relationship between employer and particular carriers served by employees involved in representation dispute). The rule from these cases-that the control analysis should consider the specific relationship between an employer and a commercial air carrier that a particular dispute implicates-stands on solid ground. If the test applied to employers like EDS as a whole, entire units of workers providing carrier-support services would not be subject to the RLA, regardless of the integrality of their work to air transportation, simply because they fall under the umbrella of large corporations with additional divisions serving other industries. Such a result would not advance the statute’s purpose of protecting the continuity of commercial air transportation. See Verrett, 70 F.Supp.2d at 1283 (“The fact that a company provides services to carriers and to some non-carriers does not detract from RLA jurisdiction, as long as there is still an essential element of transportation-related service.”). Thus, EDS meets the control test if its relationship with American-the client for whom the Cunninghams worked-evinces the requisite control.
A further issue, which the parties have not addressed, is whether the control test may apply to an even narrower segment of the employer’s operations-defined either geographically or functionally-than its relationship with a specific carrier client. The NMB is apparently willing to focus the control analysis upon a specific geographical unit of a carrier affiliate’s operations. In re Huntleigh USA Corp., 29 NMB 121 (Dec. 17, 2001) (limiting analysis to operations at one airport). If the same scope limitation were appropriate for a particular category of employees working for a particular client, then EDS might satisfy the control prong simply by showing that Staff Augs at American-as a distinct unit of employees-are “controlled by” American. This framework would require applying the “craft or class” test used to define bargaining units under the RLA to determinations of whether specific subsets of carrier-affiliate employees fall under NMB or NLRB jurisdiction. See, e.g., In re Merger of Grand Trunk Western Railroad Co., 17 NMB 282, 288 (June 18, 1990). The NMB’s carrier-affiliate case law, however, does not appear to address the issue. Because the parties have not briefed the question, and because the current record does not permit a determination as to whether Staff Augs constitute a “craft or class,” the Court declines to consider the issue now, though trial of this action may well bring it to the fore.
While EDS’s formulation of the control prong (that it requires analysis only of the IT services EDS provides to American) is correct, at least as far as it goes, defendant has not met its burden of proving that the prong is satisfied. To establish that its relevant operations are “controlled by” American, EDS relies mainly upon its contract with the airline. Admittedly, portions of the contract do support defendant’s case, at least to some extent. For example, the Agreement requires that EDS house three American software applications on its computers, (Agrmnt. at 35); and obtain American’s approval before using any third-party software. (Id. at 31-32). The Agreement also affords American the right to reject any particular software update EDS wishes to implement, (Id. at 15), and sets conditions under which EDS may use American office space. (Id. at 32-33.) Further, the subsidiary “service level” agreements impose performance standards on EDS, covering such issues as “average response time to outages” and “the number of outages per month on network resources.” (Shanks Decl. ¶¶ 7 .) These contractual provisions sketch the parameters of a relationship that might approach the level of control present in the cases defendant cites, see supra n. 4 (collecting cases), but nothing in the record informs the Court as to the actual nature of American’s relationship with EDS, or the actual level of control that one entity exerts over the other. Do all EDS employees in fact work from American office space? Does American actually exercise tight oversight of the software EDS uses? The record does not provide any answers. In the same vein, does American actually monitor and enforce the service levels in a way that approximates the level of daily supervision seen in the NMB cases? See, e.g., Kanonn, 31 NMB at 417; In re Air Serv, 35 NMB at 211. The little evidence defendant has submitted on this question suggests that American, though it can access compliance data on an EDS website, in fact monitors compliance only “periodically,” mainly through monthly and quarterly reports from EDS. (Shanks Decl. ¶¶ 6-11.) That comparatively sparse level of operational supervision argues against satisfaction of the control prong. See Kanonn, 31 NMB at 417.
Indeed, the most obvious gap in the evidence concerns the two most significant NMB factors: American’s day-to-day involvement in EDS’s operations, and its influence over EDS’s personnel decisions. The record does not indicate where core IT employees assigned to the American account work, let alone whether American controls their schedules, work procedures, attire, or anything else about their workday. And while the contract provides American with some power over whom EDS hires to fill the roles of account manager and five other “key” positions, nothing in the record indicates whether American actually exerts any such influence. Moreover, the NMB has found that control over only top managers does not necessarily demonstrate sufficient power over personnel decisions to satisfy the control prong. In re Bombardier, 32 NMB 131, 139-40 (Jan. 31, 2005) (lack of requisite control even where carrier retained “right to approve [employer’s] selection of the General Manager ….”). The record is silent as to whether American controls personnel decisions regarding other core IT workers, beyond the small group mentioned in the Agreement.
Aside from the contractual provisions, most of the remainder of EDS’s control evidence pertains exclusively to Staff Augs. According to the record, Staff Augs work from American office space, among American employees, and under the supervision of American managers, who control Staff Aug assignments, work schedules, and dress code. (Def. 56.1 ¶¶ 95-96, 105; Cuccrese Decl. ¶¶ 7-15.) American establishes Staff Aug hiring criteria, interviews candidates, and makes final hiring decisions. (Def. 56.1 ¶ 93.) When American is dissatisfied with a Staff Aug’s performance, it can demand that EDS discipline or remove the individual, and EDS habitually complies with those demands. (Id. at ¶¶ 109-11.) This evidence certainly shows that Staff Augs like the Cunninghams are “controlled by” American, but it only works to emphasize the inadequacy of the record as a whole, under the interpretation of the control prong EDS has proposed. American certainly controls personnel decisions regarding Staff Augs, but nothing shows similar control over EDS’s other IT workers-the employees who provide American with “midrange hosting (i.e., servers), mainframe hosting, network, applications development and maintenance, helpdesk and desktop [services].” (Id. at 9.) Similarly, with respect to operational control, it is evident that American supervises Staff Augs on a daily basis, but the record does not indicate whether American controls any details of daily operations for core IT workers. EDS has submitted ample declarations about Staff Aug life, but no evidence addresses the circumstances in which core IT employees work. And the record does not say what portion of the EDS-American relationship Staff Augs represent. For all the Court knows, Staff Augs are a minor aspect of the relationship. Thus, under EDS’s own formulation of the control prong-that it implicates the “portion of [EDS’s] business that relates to [American]”-the Staff Aug evidence does not satisfy EDS’s burden to prove that it is “controlled by” American. Rather, that evidence highlights the insufficiency of the record concerning American’s overall relationship with EDS.
Because EDS has not met its burden with respect to the control prong, summary judgment is denied. See Cunningham, 579 F.Supp.2d at 540.”
Health Care Reform Law Amends FLSA to Require Breastfeeding Breaks, Thompson Reports
Under the new Health Care Reform Law, the FLSA has been amended in several important respects. In addition to the highly publicized provision of healthcare for previously uninsured people, Thompson reports that employers must now provide breaks for women who are breastfeeding:
“Employers must now provide “reasonable” unpaid breaks to nursing mothers to express milk for their infants under an amendment to the Fair Labor Standards Act included in the landmark health care law signed by President Obama on March 23.
The health care law adds a new provision to the FLSA, 29 U.S.C. §207(r)(1), which allows nursing mothers to take a break every time they need to express breast milk and requires employers to provide a private location, other than a bathroom, where such employees may express milk. Employees must be allowed such breaks for up to one year after their child’s birth.
Employers of fewer than 50 employees are exempt if the breastfeeding requirements would “impose an undue hardship by causing the employer significant difficulty or expense.”
A number of states already mandate breastfeeding breaks, and under the FLSA, employers must comply with the standard that is more favorable to the employee (29 U.S.C. §218).
The health care law also amends the FLSA to require employers of more than 200 employees to automatically enroll new employees in existing employer-offered health plans.”
To read the entire article click here.
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