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7th Cir.: Pharma Reps Are Administratively Exempt
Schaefer-LaRose v. Eli Lilly & Co.
This case was before the Seventh Circuit on the consolidated appeals of two different summary judgment orders in two different cases. In one case, the trial court had granted the plaintiffs’ motion for summary judgment holding that, as a matter of law, pharmaceutical reps were not administratively exempt employees. In the other case, the trial court held that the pharmaceutical reps were subject to the administrative exemption, and granted the defendant’s motion for summary judgment. Resolving this issue, at least in the Seventh Circuit, the court agreed with the latter and held that pharma reps do in fact meet both of the duties prongs of the administrative exemption. In so doing, the court joined the Third Circuit and furthered the split with the Second Circuit which had previously held that pharma reps with virtually identical duties are not subject to the administrative exemption.
Initially, the court examined the first duties prong of the administrative exemption and held that the reps’ primary duty as pharmaceutical sales representatives was performance of office work directly related to their employers’ general business operations. In so doing, the Seventh Circuit seems to have taken a particularly broad view of the first prong, in line with other recent Seventh Circuit authority, but in contrast to other circuits such as the Second and Eleventh, which typically require that an administrative employee “run of service” the employer’s business or at least some aspect of it in order to fall under the exemption.
In holding that they exercised the requisite independent judgment and discretion, the court cited the arguments raised by the defendants that:
the pharmaceutical companies assert that the representatives had a host of core duties committed to their discretion, including determining how best to gain access to particular physicians and managing their limited discretionary budgets. Their primary argument, however, focuses on the discretion that an individual representative must employ in the course of an individual sales call with a physician to communicate effectively his employer’s core message to the specific audience and to address a physician’s particular concerns.
As in other recent cases regarding the administrative exemption, the Seventh Circuit seems to have lowered the bar for the level of discretion that an employee must exercise in order to qualify for the exemption. Whereas § 541.202(b) explains:
The phrase “discretion and independent judgment” must be applied in the light of all the facts involved in the particular employment situation in which the question arises. Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to: whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects business operations to a substantial degree, even if the employee’s assignments are related to operation of a particular segment of the business; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval; whether the employee has authority to negotiate and bind the company on significant matters; whether the employee provides consultation or expert advice to management; whether the employee is involved in planning long- or short-term business objectives; whether the employee investigates and resolves matters of significance on behalf of management; and whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances.
the court seemed to simply conclude that the plaintiffs’ duties were sufficient because they exercised some level of discretion, a fact that the parties did not dispute. Discussing the discretion exercised by the plaintiffs, the court reasoned:
Beyond these physician interactions, which we consider to be the critical function of the job and the place in which discretion is most evident, the representatives’ other duties related to the actual call on the physician also manifest a substantial measure of judgment. Although representatives are given specific call plans identifying the physicians to be visited and the degree of frequency or priority category for each physician, several representatives testified that they apply a measure of strategic analysis to their work, choosing to see physicians not on their call plans or non-physicians who may influence prescribing patterns. See supra note 14 (describing discretion applied to call plans). They work collaboratively with one another, proposing comprehensive visit plans for the territories and checking in regularly by phone to keep each other abreast of developments in particular visits with physicians. Representatives also spend the vast majority of their time entirely unsupervised. Although they keep extensive records, through which management can and does monitor their progress, neither the fact that management reviews their work nor that they are required to keep such records detracts from the discretion they exercise in the core of their workday.
The court also rejected the plaintiffs’ contention that the plaintiffs’ principal duties involved the application of skill, rather than the judgment required for application of the exemption:
Finally, the plaintiffs and the Secretary briefly contend that the work of the representatives principally involves the application of skill, rather than judgment. Although they are correct that the regulations draw this distinction and caution that skill is insufficient to warrant the exemption, skill and judgment are not mutually exclusive. The records clearly demonstrate that the representatives receive extensive skills training, particularly on sales techniques. They most certainly employ this skill, and, indeed, many others in the course of their daily duties. Nevertheless, applying these skills entails a great deal of judgment. The job requires far more than “applying well-established techniques, procedures or specific standards described in manuals.”
With the issue of whether pharmaceutical reps are subject to the outside sales exemption notwithstanding the fact that they technically do not make such sales currently before the Supreme Court, the conflict between the circuits may or may not continue to be significant in a few weeks time. Regardless of the effects of this decision on the ongoing pharma rep overtime battles, it is becoming more and more clear that the Seventh Circuit is the place employers want to be if they are arguing that any type of employee is administratively exempt.
Click Schaefer-LaRose v. Eli Lilly & Co. to read the entire Order.
2 Recent Decisions Hold That an Employer-Defendant Cannot Avoid Liquidated Damages By Relying on Involuntary Administrative Governmental Audits
As FLSA cases have proliferated in recent years, among the formally sleepy areas of jurisprudence that has seen a dramatic rise in litigation is the so-called “good faith” defense. Although in its earliest years the FLSA provided for mandatory liquidated damages, a subsequent amendment to the FLSA, through the Portal-to-Portal Act, now allows for a defendant to avoid the imposition of liquidated damages (in addition to the underlying unpaid wages damages) if it can demonstrate that it took affirmative steps to attempt compliance with the FLSA, but violated the FLSA nonetheless. Two recent cases reiterate that a defendant’s burden is not met solely by demonstrating that it had a subjective belief that it was complying.
McLean v. Garage Management Corp.
In the first case, the defendant sought to avoid liquidated damages by relying on a series of involuntary misinformed DOL audits, which it claimed it reasonably relied upon in establishing their belief that its illegal pay methodology, whereby it treated hourly employees as executive exempt from the FLSA’s overtime provisions. While the DOL has in fact found the defendant’s classification to be proper, the court noted that the DOL’s finding was based on its examination of the employees’ duties alone, because the defendant had misrepresented to the DOL that the employees were paid on a salary basis, at the required rate under the applicable regulations in the initial audit. Subsequent audits simply compounded this initial incomplete investigation, based on the information the defendant provided to the DOL in the initial audit.
Significantly, the court rejected the defendants’ claimed reliance on the DOL audits for 3 separate reasons. First, it found that any informal conversations do not constitute “active steps” to ascertain the dictates of the law. Second, the court noted that the audits were involuntary and defendant had not requested same and thus, giving government investigators access to records and employees did not relieve defendant of its own obligation to determine what the labor laws require. Third, the court noted that defendant had not shown that any government investigator focused with care on its time and payroll records for the employees in question, and thus the DOL had not undertaken a review to see whether the defendant indeed paid a predetermined amount that did not vary, as required to meet the “salary basis” prong of the executive exemption. “Without such full disclosure, [the defendant] cannot reasonably rely on the existence of the investigations and their failure to find any inadequacies in the compensation system for [the employees].”
Finally, the court held that the defendant was not entitled to rely on the fact that it periodically consulted with outside counsel, because it had invoked its attorney-client privilege. The court explained that absent a waiver of the privilege, the defendant could not sustain a defense based on good faith reliance on the advice of counsel.
Click McLean v. Garage Management Corp. to read the entire Opinion and Order.
Solis v. R.M. Intern., Inc.
In the second case- concerning an alleged misclassification of drivers under the Motor Carrier Act (MCA) exemption- the defendant sought to avoid the imposition of liquidated damages, by relying on a prior involuntary Department of Transportation (DOT) audit/citations and the advise of counsel it received as part of the audit process. As in McLean above, the court rejected this evidence of “good faith” as insufficient to meet the defendant’s heavy burden.
The court noted:
Defendants maintain they have demonstrated both their subjective good faith and objectively reasonable belief that their failure to pay overtime wages to their drivers did not violate FLSA. To meet their burden, Defendants rely almost exclusively on their compliance with DOT rules and the DOT’s citation of “some” of their intrastate-only drivers. The DOT’s citation of “some” of Defendants’ intrastate-only drivers, however, does not provide a sufficiently reasonable basis for concluding all such drivers were under the DOT’s jurisdiction and, therefore, exempt from FLSA. The objective reasonableness of Defendants’ failure is undermined by the fact that the determination as to whether the Department of Labor or the DOT has jurisdiction is resolved on a driver-by-driver basis, as the Court explained at length on summary judgment, and, in any event, DOT jurisdiction for a driver who only occasionally drives in interstate commerce lasts only 4 months from the last such trip. See Reich v. Am. Driver Serv., Inc., 33 F.3d 1153, 1155–56 (9th Cir.1994). Furthermore, exemptions to FLSA, such as the Motor Carrier Exemption relied on by Defendants, are to be construed narrowly and only apply to employees who “plainly and unmistakably” fall within their terms. See Solis v. Washington, 656 F.3d 1079, 1083 (9th Cir.2011). Thus, the Court concludes Defendants’ generalizations about entire classes of their drivers on the basis of DOT citations of some of its drivers are insufficient to establish the objective reasonableness of Defendants’ failure to comply with FLSA. Similarly and in light of the lack of testimony in this regard, the fact that Defendants required both their interstate and intrastate drivers comply with DOT regulations neither establishes Defendant’s subjective belief nor its objective reasonableness.
Defendants also maintain their belief that their drivers were exempt from FLSA is reasonable in light of the fact that they hired counsel to assist with the November 2009 DOT compliance audit. Although there is not any direct evidence as to the purpose of counsel’s representation, the Court concludes it is fair to infer that counsel was hired to ensure Defendants’ compliance with DOT regulations rather than to ensure Defendants were compliant with FLSA. In any event, there is not any evidence on this record from which the Court can find that Defendants took “the steps necessary to ensure [its] practices complied with [FLSA].” Alvarez, 339 F .3d at 910 (“Mistaking ex post explanation and justification for the necessary affirmative ‘steps’ to ensure compliance, [the defendant] offers no evidence to show that it actively endeavored to ensure such compliance.”). Thus, the Court concludes on this record that Defendants did not satisfy their “difficult” burden to show their subjective good faith failure to comply with FLSA or the objective reasonableness of their actions, and, therefore, the Court concludes Plaintiff is entitled to liquidated damages in the amount equal to the unpaid overtime wages.
Click Solis v. R.M. Intern., Inc. to read the entire Supplemental Findings of Fact and Conclusions of Law and Verdict.
W.D.N.Y.: Defendant’s Attorneys’ Billing Records Relevant and Discoverable Where Defendant Put Reasonableness of Hours and Rates Charged by Employee’s Attorneys at Issue, By Opposing Plaintiffs’ Motion For Attorneys’ Fees
Mendez v. Radec Corp.
Following an order granting the parties’ joint motion for approval of settlement agreement, the plaintiff moved for award of attorneys’ fees and renewed his motion to reopen discovery to discover defense counsel’s billing records. Over defendant’s objection, the court granted plaintiff’s motion, reasoning that the billing records were relevant and discoverable, because the defendant had put the reasonableness of hours and rates charged by plaintiff’s counsel at issue, by opposing plaintiff’s motion for attorneys’ fees.
Initially the court noted that cases have come down on both sides of the issue, with some courts holding that defenses counsel’s billing records are discoverable, while others have held that they are not.
Discussing the applicable law generally, the court explained:
The general principle underlying these divergent results seems to be that whether such information is discoverable depends on the nature of the objections raised to the fee request. Where the opposing party challenges the reasonableness of the rate or hours charged by the moving party’s counsel, courts are more likely to find that evidence of the nonmoving party’s counsel’s fees are relevant and discoverable. See State of New York v. Microsoft Corp., No. 98–1233, 2003 WL 25152639, at *2 and n. 3 (D.D.C. May 12, 2003) (stating that “some of the cases explicitly note that ‘ [w]hether discovery is appropriate depends, in part, on the objections raised by the opponent to the fee petition going to the reasonableness of the fee petition’ “) (quoting Murray v. Stuckey’s Inc., 153 F.R.D. 151, 152–53 (N.D.Iowa 1993)) (collecting cases); see, e.g., Pollard, 2004 WL 784489, at *3 (stating that because “DuPont objected to the excessiveness of the fees requested in the fee petition for the preparation of the fee petition …, it appears that DuPont’s own counsel’s time spent in preparing a response to Pollard’s petition for fees would serve as a logical yardstick from which to determine the reasonableness of such time expended by the plaintiff’s counsel”).
Addressing and rejecting the defendant’s contentions that their billing records were not subject to discovery, the court reasoned:
In the case at bar, defendants have not only challenged the reasonableness of the fees sought by plaintiffs, they have also expressly referenced their own fees in support of their arguments. For example, in their memorandum of law, defendants cite the specific fees and costs sought, and hours claimed, by plaintiffs’ counsel, and contrast them with those of defense counsel, noting that “Plaintiffs seek almost 3 times as much compensation for prosecuting this action as Radec spent to defend.” Dkt. # 334 at 6. Later, in discussing plaintiffs’ counsel’s hourly rates, defendants state that “the rates charged to Radec in this case are instructive.” Id. at 12. Similarly, defendants state that over a certain period, “Radec was charged only the flat fee of $175,000,” whereas “Plaintiffs claim $764,915.00 in fees for the same period….” Id. at 19.
Thus, defense counsel themselves have put at issue the reasonableness of the hours and rates charged by plaintiffs’ attorneys, and have used their own hours and rates as yardsticks by which to assess the reasonableness of those sought by plaintiffs. I therefore find that defense counsel’s billing records are relevant and discoverable. Cf. Marks Constr. Co. v. Huntington Nat’l Bank, No. 1:05CV73, 2010 WL 1836785, at *7 (N.D.W.Va. May 5, 2010) (“absent an attempt [by defendants] to claim a comparison between what Defendants paid and the claims of Plaintiffs as the basis for challenging the reasonableness of Plaintiffs’ claimed fees, there is no relevance shown with respect to the issues of the amount and reasonableness of attorneys fees and costs claimed by Plaintiffs’ counsel that justifies the required production of the billing records of [defense counsel]”).
Defendants’s argument that their detailed billing records are not discoverable because their opposition to plaintiffs’ fee request only cited the total hours and rates charged to defendants by their attorneys, see Def. Mem. of Law (Dkt. # 344) at 3, misses the point. In arguing that the hours claimed by plaintiffs’ attorneys are unreasonable, defendants have focused on specific hours and entries in plaintiffs’ counsel’s billing records. Defendants have stated, for example, that plaintiffs’ request for $15,000 for time spent preparing affidavits in connection with a particular motion is excessive, that one of plaintiffs’ attorneys billed 1.5 hours for a hearing that only took a half hour, and that plaintiffs’ allocation of 1443.2 hours of work on preparing binders is “outrageous.” Dkt. # 334 at 17–18. It is precisely because defense counsel then cite only their total time spent on the case that renders it difficult to determine whether this is a fair comparison.
While the court recognized that there may be significant differences in the ways that plaintiffs’ counsel and defense counsel litigate a case, and that this could cause a disparity between the two sides’ respective hours and hourly rates, the court explained that any such a disparity would not necessarily mean that one side’s fees were necessarily unreasonable or excessive. Further, the court held that such considerations go to the weight to be assigned to defense counsel’s billing records rather than rendering them non-discoverable. Thus, the court granted plaintiff’s motion.
Click Mendez v. Radec Corp. to read the entire Decision and Order.
N.D.Cal.: “Annual Leave” Buy-Back, Consisting of Both Vacation and Sick Leave, Need Not Be Included in Regular Rate (or OT) Calculations
Balisteri v. Menlo Park Fire Protection Dist.
This case was before the court on the parties’ cross-motions for summary judgment. Plaintiffs asserted 2 distinct claims: one for time spent donning and doffing their firefighter uniforms for temporary assignment, and one based on their assertion that defendant erred in failing to include payments made for buy-back of “Annual Leave” in their regular rates (and corresponding overtime rates). As discussed here, the court granted the defendant’s motion and held that the “Annual Leave” buy-back need not be included in the calculation of plaintiffs’ regular rate, while denying plaintiffs’ motion. In so doing the court distinguished the case from others reaching the opposite conclusion regarding a similar issue.
The court framed the issue as follows:
Plaintiffs’ second claim alleges that Defendant violated the FLSA by failing to include Annual Leave buy-backs for unused “sick leave” in their regular rate of pay which, in turn, negatively affected their overtime pay. The FLSA requires employers to pay their employees overtime based on one and a half times the employee’s “regular rate” for hours worked in excess of 40 hours a week. 29 U.S.C. § 207(a)(2)(c). The “regular rate” of pay “at which an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee,” subject to certain enumerated exceptions. Id. § 207(e). One exception is for payments made for periods when no work is performed. Id. § 207(e)(2). The exception states that the regular rate should not include:
Payments for occasional periods when no work is performed due to vacation, holiday, illnesses, failure of the employer to provide sufficient work, or other similar cause …; and other similar payments to an employee which are not made as compensation for his hours of employment.
Id. (emphasis added). The regulations implementing this exclusion reiterate that when an employee is not at work due to vacation or illness but nonetheless is paid, said payment need not be used in calculating the employee’s regulate or overtime rate of pay. 29 C.F.R. § 778.218(a). The exclusion also applies when an employee foregoes a vacation but still receives vacation pay in addition to his or her customary pay for all hours worked. Id. § 779.218(a); see Chavez v. City of Albuquerque, 630 F.3d 1300, 1307–309 (10th Cir.2011) (citing, inter alia, 29 C.F.R § 779.218(a) and holding that “vacation buy back-payments are not part of the regular rate.”).
Discussing the relevant law, the court explained:
The Ninth Circuit has not yet addressed the issue of whether buy-back compensation for unused sick leave must be included in an employee’s regular rate for purposes of the FLSA, and other circuits are split on the issue. In Featsent v. City of Youngstown, 70 F.3d 900 (6th Cir.1995), the Sixth Circuit held that a cash-out for unused sick leave is not pay for hours worked, and need not be included in the employee’s regular rate. Id. at 905. The court reasoned that “awards for nonuse of sick leave are similar to payments made when no work is performed due to illness, which may be excluded from the regular rate” under 29 U.S.C. § 207(e)(2). Id. In contrast, the Eighth Circuit in Acton v. Columbia, 436 F.3d 969 (8th Cir.2006) reached the opposite conclusion. In its analysis, the Acton court relied on 29 U.S.C. § 207(e), which requires money paid for general or specific work-related duties to be included in the regular rate of pay. Id. at 976–77. Noting that “the primary effect of the buy-back program is to encourage firefighters to come to work regularly over a significant period of their employment tenure,” the court concluded that work attendance was a specific work-related duty and that the buy-back payments must be included as remuneration for employment. Id. at 977.
Following Action, as well as a Department of Labor interpretive bulletin, the Tenth Circuit in Chavez held that sick leave buy-backs—but not vacation buy-backs—must be included in the regular rate. 630 F.3d at 1309;
see U.S. Dept. of Labor, Wage and Hour Opinion Letter FLSA–2009–10, dated Jan. 16, 2009, 2009 WL 649021. The Chavez court explained this distinction as follows:
To be sure, both vacation and sick leave buy-back reward attendance, in some sense, because they reward an employee for not taking days off. The key difference lies in the way each type of day off operates. A sick day is usually unscheduled or unexpected, and is a burden because the employer must find last-minute coverage for the sick employee. In contrast, vacation days are usually scheduled in advance, so their use does not burden the employer in the way that unscheduled absences do. An employee has a duty not to abuse sick days, whereas there is no corresponding duty not to use vacation days. Buying back sick days rewards an employee for consistent and as-scheduled attendance, which are the aspects of good attendance that provide additional value to an employer. Thus, sick leave buy-backs are compensation for additional service or value received by the employer, and are analogous to attendance bonuses. In contrast, payments for non-use of vacation days are analogous to holiday work premiums or bonuses for working particular undesirable days.
Id. at 1309–1310.
Rejecting plaintiffs’ assertion that the payments at issue must be included in the regular rate calculations and distinguishing out-of-circuit case law, the court reasoned:
Plaintiffs urge the Court to follow Acton and Chavez and to find that the District’s buy-backs under its Annual Leave program should have been included in Plaintiff’s regular rate. The Court disagrees. Both of those cases involved dedicated buy-back programs specifically for sick time. This case is different. The District no longer separates sick leave from vacation time. Rather, the District now maintains an Annual Leave program which makes no distinction between vacation or sick time when time is withdrawn from the Annual Leave Bank. As discussed, under the terms of the governing MOU, Annual Leave accrues pursuant to separate formulas for “sick leave” and “vacation.” MOU § 10.1 & Ex. B. However, once sick leave and vacation time have accrued, they are deposited into an Annual Leave Bank. Once in the Annual Leave Bank, the employee’s accrued time is simply treated as Annual Leave, which can be used for both unscheduled and scheduled absences. In other words, an employee may use his or her Annual Leave without regard to the reason the employee is taking time off. Thus, unlike the sick leave buy-back program in Chavez, the District’s buy-back of annual leave does not “reward[ ] an employee for consistent and as-scheduled attendance” and is not “analogous to attendance bonuses.” 630 F.3d at 1309–310.
The court rejected plaintiffs argument regarding the significance of the fact that under the MOU, leave time accrues separately on either the vacation or sick leave schedule, and that when time is debited from the Annual Leave Bank, it is classified as either “annual level scheduled” or “annual leave unscheduled.” The court also questioned the significance of the fact that the hours accrued at the vacation rate are segregated into an Annual Leave Restricted Bank until they can be scheduled and used. Because no deductions could be made from the Annual Leave Restricted Bank nor does the District buy-back any leave in that bank. Id. Instead, only at the end of the calendar year in which the leave accrued are those hours are rolled in the Annual Leave Bank where they can be used for any purpose. Finally, the court dismissed plaintiffs argument that, as a practical matter, the “vast majority” of them use their Annual Leave for scheduled absences, meaning that any leftover hours cashed-out are, in effect, for sick leave, due to the lack of evidence in support of this proposition.
Click Balisteri v. Menlo Park Fire Protection Dist. to read the Order Granting Defendant’s Motion for Summary Judgment, and Denying Plaintiffs’ Motion for Summary Judgment.
S.D.N.Y.: Delay Caused By the Time Required for Court to Rule on Motion for Conditional Certification Is ‘Extraordinary Circumstance’ Justifying Equitable Tolling
McGlone v. Contract Callers, Inc.
This case was before the court on plaintiff’s motion for conditional certification of a collective action, seeking to permit court approved notice. The court noted that another court, presented with a similar motion for conditional certification had previously denied same due to very significant differences in the factual circumstances in the employees’ work, depending on location. Nonetheless the court granted plaintiff’s motion and conditionally certified the case with respect to the district in which the plaintiff was employed. As discussed here, the court also granted plaintiff’s motion to equitably toll the statute of limitations for putative class members, as of the date the plaintiff filed his motion for conditional certification. In so doing, the court joined other courts who have held that court delay in issuing a decision on a motion for conditional certification is of itself an “extraordinary circumstance” warranting the tolling of the statute of limitations.
Addressing the equitable tolling issue, the court said:
Normally in a FLSA collective action, the statute of limitations for each plaintiff runs when he or she files written consent with the court electing to join the lawsuit, not when the named plaintiff files the complaint. See 29 U.S.C. § 256(b). However, courts have discretion to equitably toll the limitations period in appropriate cases in order “to avoid inequitable circumstances.” Yahraes v. Restaurant Assocs. Events Corp., 2011 WL 844963, at *1 (E.D.N.Y. Mar.8, 2011). The Honorable Steven M. Gold stated that “the delay caused by the time required for a court to rule on a motion, such as one for certification of a collective action in a FLSA case, may be deemed an ‘extraordinary circumstance’ justifying application of the equitable tolling doctrine.” Id. at *2 (collecting cases). While plaintiffs wishing to pursue their rights cannot sit on them indefinitely, those whose putative class representatives and their counsel are diligently and timely pursuing the claims should also not be penalized due to the courts’ heavy dockets and understandable delays in rulings. Accordingly, the statute of limitations will be tolled as of the date of the filing of this motion.
While courts remain split on this issue, this is a good example of a court ruling on equitable tolling with the remedial purposes of the FLSA in mind.
Click McGlone v. Contract Callers, Inc. to read the entire Opinion.
E.D.N.Y.: Where 20% Gratuity Constituted Recommended Tip, Not Mandatory Service Charge, It Was Properly Excluded From Calculation of Regular Rate and Overtime
Ellis v. Common Wealth Worldwide Chaueffuered Transp. of NY, LLC
This case was before the court on the parties’ cross-motions for summary judgment and plaintiff’s related motion to strike. As discussed here, one of the issues before the court was whether a recommended 20% gratuity constituted a tip or a mandatory service charge, as defined by the FLSA. Significantly, defendant did not include the gratuity in plaintiffs regular rate for purposes of calculating his overtime each week. If it constituted a tip, it was properly excluded from the calculation of plaintiff’s regular rate and resulting overtime rate of pay. However, if it was a mandatory service charge, defendant was required to include it in calculating plaintiff’s overtime, and its failure to do so constituted a violation of the FLSA. Based on the facts before the court, the court concluded that the gratuity was simply a recommended (not mandatory) tip amount, and thus was properly excluded from plaintiff’s regular rate of pay.
The court explained:
“Where an employer, such as Commonwealth, is not using a “tip credit” to satisfy the FLSA’s minimum wage provision, any tips the employee receives “need not be included in the regular rate” for purposes of calculating proper overtime wages. 29 C.F.R. § 531.60 (2012). Federal regulations define a tip as:
a sum presented by a customer as a gift or gratuity in recognition of some service performed for him. It is to be distinguished from payment of a charge, if any, made for the service. Whether a tip is to be given, and its amount, are matters determined solely by the customer, who has the right to determine who shall be the recipient of the gratuity.
29 C.F.R. § 531.52 (2012). However, “[a] compulsory charge for service, such as 15 percent of the amount of the bill, imposed on a customer by an employer’s establishment, is not a tip.” 29 C.F.R. § 531.55 (2012).
Here, there is no genuine factual dispute that the Recommended Tip was discretionary, and not a mandatory 20% charge. There is no dispute that Commonwealth’s invoices noted next to the Recommended Tip charge that “[t]he actual amount of the tip is in the discretion of the customer; any tip received will be remitted in full to the chauffeur.” (Rutter Aff. Ex. C.) Rutter, as well as Diane Pessolano, Commonwealth’s controller, both attested that the Recommended Tip was not mandatory and clients could and would pay either more or less than the recommended 20%. (Id. ¶ 24; Aff. of Diane Pessolano, dated Apr. 8, 2011, Dkt. Entry 26–12 at ¶¶ 7–8.). Plaintiff has failed to point to anything in the record rebutting this evidence. Therefore, the court finds that the Recommended Tip was a tip as a matter of law. See Chan v. Sung Yue Tung Corp., 2007 WL 313483, at *14 (S.D.N.Y. Feb.1, 2007) (Lynch, J.) (as opposed to a tip, “a ‘service charge’ is a mandatory charge imposed by an employer on a customer that is the property of the employer, not the employees, and becomes part of the employer’s gross receipts.”)…
For the forgoing reasons, the court finds that there is no genuine material question of fact as to the whether the Recommended Tip is mandatory, thus requiring that it be included in Plaintiff’s “regular rate.” Summary Judgment is granted to Defendants on this ground.”
Click Ellis v. Common Wealth Worldwide Chaueffuered Transp. of NY, LLC to read the entire Opinion and Order.
E.D.Pa.: Following Third Circuit Precedent, Pharmaceutical Rep Administratively Exempt
Kesselman v. Sanofi-Aventis U.S. LLC
Continuing a split with virtually every other circuit, another court within the Third Circuit has held that a pharmaceutical representative, performing typical duties is administratively exempt under the FLSA (and PMWA, which requires exercise of discetion and independent judgment, but not that same be exercised with regard to matters of significance) is exempt from overtime under the administrative exemption.
Discussing the Third Circuit precedent, the court stated:
The Third Circuit has recently found pharmaceutical sales representatives exempt as administrative employees under the FLSA and the PMWA. In Smith v. Johnson & Johnson, the Court held a sales representative was engaged in work directly related to the management or general business operations of the employer because the “position required her to form a strategic plan designed to maximize sales in her territory,” which “involved a high level of planning and foresight.” Because Smith “executed nearly all of her duties without direct oversight” and considered herself “the manager of her own business who could run her own territory as she saw fit [,]” the Court concluded that Smith was subject to the administrative employee exemption under the FLSA.
In Baum v. AstraZeneca, the Court, relying on Smith, held that plaintiff’s work related to her employer’s general operation because she marketed and advertised its pharmaceutical products. The plaintiff also had “significant discretion in how she would approach physicians, whether it be through access meals, peer-to-peer meetings, or other means,” “spent the majority of her time in the field, unsupervised,” “decided how much time she would spend with a given physician …. [and] whether she would use a detail aid,” such that her “day-to-day activities involved making numerous independent judgments on how best to promote [her employer’s] products.” The Third Circuit therefore held that plaintiff was subject to the administrative employee exception to the PMWA.
The court rejected plaintiff’s contention that her duties were distinguishable from prior cases within the Third Circuit:
Having carefully considered the undisputed and stipulated facts of this case, Kesselman’s deposition testimony, and record documents reflecting Kesselman’s own assessment of her job responsibilities and accomplishments, the Court finds Smith and Baum controlling. Like the plaintiffs in Smith and Baum, Kesselman spent most of her working hours unsupervised and was responsible for developing her own target list of physicians, daily and monthly sales call itineraries, and a business plan for her territory based on her extensive knowledge of clients and sales data. Although, like Smith and Baum, she often worked from company-approved materials and was expected to convey certain product information during calls, she otherwise had discretion as to how to organize and conduct the calls. In general, she considered herself the “boss” of her territory.
These activities, which closely parallel the activities of Smith and Baum, “reflect [her] ability to develop strategies; to approach, communicate, and cultivate relationships with physicians; and to operate without constant supervision in the field.” Furthermore, they “are consistent with relevant definitions of exempt administrative work because they affect Defendant’s business operations to a substantial… work on behalf of Defendant that reflect the exercise of discretion and independent judgment with respect to matters of significance….”
While the issue of whether the outside sales exemption applies to pharmaceutical representatives has reached the Supreme Court, with a resolution to be forthcoming shortly, it is not clear whether the administrative exemption issue will have the same fate. Whereas the outside sales exemption issue hinges on the legal definition of the term “sale,” the administrative exemption requires a more fact specific inquiry. Thus, for the foreseeable future, pharmaceutical representatives whose cases are decided in New Jersey, Delaware and Pennsylvania may be exempt from the FLSA under the administrative exemption, while those whose cases are adjudicated in the other 47 states are not. Of course, to the extent that the Supreme Court holds that their positions are outside sales exempt, the whole issue will be rendered moot.
Click Kesselman v. Sanofi-Aventis U.S. LLC to read the entire Memorandum Opinion and Order.
N.D.Ill.: Plaintiffs’ Motion for “Partial Decertification,” Seeking Subclasses by State Granted
Medina v. Happy’s Pizza Franchise, LLC
In an emerging trend in FLSA cases, this case was before the court on the plaintiffs’ motion for decertification. The motion followed the defendants’ motion to dismiss, pursuant to FRCP 19, for failure to join necessary parties, franchisees who owned and operated its franchises. The court granted plaintiffs’ motion, but noted that it was not considering the motion so much as a decertification motion in the collective action context, as a motion to subclass the existing opt-ins by geographic region (state).
Describing the relevant background the court explained:
Happy’s Pizza is a chain of franchise restaurants that sells pizza, chicken, seafood, and ribs in several states. Happy’s Pizza Franchise, LLC, sells the right to operate restaurants and use the Happy’s name and recipes to what it contends are independent franchisee corporations. Happy Asker is the sole member of Happy’s Pizza Franchise, LLC. Happy’s Pizza Chicago # 1, Inc. and Happy’s Pizza Chicago # 2, Inc. are two of the franchisee corporations. They operate restaurants in Chicago.
Plaintiffs filed suit in May 2010, alleging that Happy’s regularly directed them to work more than forty hours a week but did not pay them overtime wages in violation of the FLSA. All three plaintiffs alleged that they had worked at the Chicago Happy’s restaurants operated by the defendant corporations. Medina and Escobar also alleged that they had worked in Happy’s restaurants in Lansing and Ann Arbor, Michigan and that they had been subjected to the same practices there. Plaintiffs sought to include in the case similarly situated Happy’s employees who likewise had not been paid appropriate overtime wages.
The Court granted conditional certification and authorized the plaintiffs to send notice to Happy’s employees. At least 254 plaintiffs have opted into the lawsuit, although the parties dispute the exact number. Among the opt-in plaintiffs, a majority worked for Happy’s restaurants in either the Eastern or Western Districts of Michigan. Approximately fifty plaintiffs worked for Happy’s restaurants in Ohio, all in the Northern District of Ohio, and twenty-three of the opt-in plaintiffs worked for Happy’s restaurants in Illinois, all in the Northern District of Illinois. Only about twenty of the opt-in plaintiffs worked for Happy’s restaurants that are operated by the two Happy’s franchises named as defendants, Happy’s Pizza Chicago # 1 and Happy’s Pizza Chicago # 2. The remaining opt-in plaintiffs worked for forty-six other Happy’s restaurants. Defendants contend these restaurants are all operated by distinct franchisee corporations that are not defendants in this suit.
Following the defendants’ motion to dismiss, based on plaintiffs’ failure to join the franchisees whom various opt-ins worked for as defendants, the plaintiffs moved for what they called partial decertification, asking the court to transfer all of the opt-in plaintiffs who had not worked for Happy’s restaurants in this district to the appropriate districts in Michigan or Ohio.
Among other things, in opposition to the plaintiffs’ motion, the defendants argued: (1) partial decertification followed by transfer of the opt-in plaintiffs, was inappropriate, because decertification of a collective action results in dismissal of opt-in plaintiffs; (2) that the court lacked the authority to transfer the Ohio and Michigan plaintiff subclasses to district courts in those states; (3) that the court should have considered their motion to dismiss prior to addressing plaintiffs motion; and (4) that neither 1 nor the proposed 4 collective actions were appropriate because the plaintiffs were not similarly situated to one another, having worked for different franchisees.
The court rejected each of the defendants’ contentions, reasoning in part:
In this case, the use of subclasses, based on the judicial districts in which the plaintiffs worked, will similarly be a more efficient mechanism for adjudicating the plaintiffs’ claims. As defendants have argued, the plaintiffs from the different judicial districts worked at different restaurants, which suggests that a significant part of the evidence for each subclass would be distinct. Defendants also note that the Michigan and Ohio plaintiffs cannot bring supplemental claims under Illinois law, as the named plaintiffs have done, and that they may be in a position to assert supplemental state law claims based on Michigan and Ohio law, which the Illinois plaintiffs cannot bring. Dividing the plaintiffs into subclasses will allow those claims to be more effectively handled as well…
Because there is no basis to conclude at this point that the plaintiffs are not similarly situated, there is no reason to decertify the collective action and dismiss the opt-in plaintiffs. Instead, the Court divides the opt-in plaintiffs into subclasses and severs from this case the three subclasses containing the Michigan and Ohio opt-in plaintiffs.
Click Medina v. Happy’s Pizza Franchise, LLC to read the entire Memorandum Opinion and Order.
3d Cir.: Hybrids Are Permissible; Rule 23, FLSA Claims Not Incompatible
Knepper v. Rite Aid Corp.
In one of the most anticipated wage and hour decisions pending at the circuit court level, the Third Circuit held yesterday that Rule 23 state law wage and hour class actions (opt-out) are not inherently incompatible with FLSA collective action (opt-in). Likely ending one of the longest running and hotly contested issues in wage and hour litigation the Third Circuit “join[ed] the Second, Seventh, Ninth and D.C. circuits in ruling that this purported ‘inherent incompatibility’ does not defeat otherwise available federal jurisdiction.”
At the court below the plaintiffs had asserted a hybrid cause of action– claims under both the FLSA’s collective action mechanism and multiple states’ wage and hour laws (Rule 23 class actions). Unlike some so-called hybrids though, here the Court’s jurisdiction over the Rule 23 state law claims was based on the original jurisdiction of CAFA, rather than the supplemental jurisdiction of 1367. While the court below had held that the Rule 23 claims could not be brought together with the FLSA collective action claims, based on “inherent incompatibility” the Third Circuit disagreed and reversed.
Framing the issue, the court explained:
“This case involves a putative conflict between an opt-out Fed.R.Civ.P. 23(b)(3) damages class action based on state statutory wage and overtime laws that parallel the federal Fair Labor Standards Act (FLSA) and a separately filed opt-in collective action under 29 U.S.C. § 216(b) of the FLSA. Both suits allege violations arising from the same conduct or occurrence by the same defendant. At issue is whether federal jurisdiction over the Rule 23 class action based solely on diversity under the Class Action Fairness Act (CAFA), 28 U .S.C. § 1332(d), is inherently incompatible with jurisdiction over the FLSA action, and whether the FLSA preempts state laws that parallel its protections. ”
Although there had been many prior trial level decisions from the courts within the Third Circuit holding that so-called hybrids were “inherently incompatible,” the panel noted that “The concept of inherent incompatibility has not fared well at the appellate level. Four courts of appeals have rejected its application to dual-filed FLSA and class actions.”
Looking first to the text of the FLSA, the court agreed with the Seventh Circuit “that that the plain text of § 216(b) provides no support for the concept of inherent incompatibility.” The court then explained that a look at legislative history was unnecessary in light of the unambiguous nature of the FLSA’s text in this regard. Nonetheless, looking at the legislative history, the court concluded, “we disagree that certifying an opt-out class based on state employment law contravenes the congressional purpose behind the Portal–to–Portal Act.”
Perhaps most significantly, the court revisited its decision in De Asencio and noted that it was “distinguishable, as the Seventh, Ninth, and D.C. Circuits have all concluded. Ervin, 632 F.3d at 981 (“De Asencio represents only a fact-specific application of well-established rules, not a rigid rule about the use of supplemental jurisdiction in cases combining an FLSA count with a state-law class action.”); Wang, 623 F.3d at 761; Lindsay, 448 F.3d at 425 n. 11. Unlike the state law claims at issue in De Asencio, there is no suggestion that the claims under the MWHL and the OMFWSA are novel or complex; Rite Aid’s principal objection is that these state claims are too similar to federal claims with which the federal courts are well familiar. Nor does this case present an instance of supplemental jurisdiction, where there is statutory authority to decline jurisdiction in the factual circumstances of De Asencio. Here, independent jurisdiction exists over plaintiffs’ claims under CAFA, which provides no statutory basis for declining jurisdiction in this instance. For these reasons, we do not believe De Asencio supports dismissal.”
The court concluded:
“In sum, we disagree with the conclusion that jurisdiction over an opt-out class action based on state-law claims that parallel the FLSA is inherently incompatible with the FLSA’s opt-in procedure. Nothing in the plain text of § 216(b) addresses the procedure for state-law claims, nor, in our view, does the provision’s legislative history establish a clear congressional intent to bar opt-out actions based on state law. We join the Second, Seventh, Ninth, and D.C. Circuits in ruling that this purported “inherent incompatibility” does not defeat otherwise available federal jurisdiction.”
The court also rejected the contention that the FLSA somehow preempts more beneficial state wage and hour laws.
Click Knepper v. Rite Aid Corp. to read the entire Opinion of the Court. Click here to read the Secretary of Labor’s amicus brief in support of the plaintiff-appellant and here to read the amicus brief submitted on behalf of several employee rights’ organizations, including the National Employment Law Association (NELA).
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