The Ninth Circuit Applies Twombly and Iqbal to FLSA Actions

December 11, 2014 by

December 11, 2014 by Malani L. Kotchka

On November 12, 2014, the Ninth Circuit Court of Appeals reviewed Landers’ Fair Labor Standards Act complaint alleging that Quality Communications, Inc. failed to pay Landers and other similarly situated employees minimum wage and overtime. Landers was employed by Quality as a cable services installer. In his complaint he alleged that he was not paid at the minimum wage and he was subjected to a “piecework no overtime” wage system. Landers also alleged that Quality failed to compensate him for all of the overtime hours he worked.

Quality had moved to dismiss the complaint and the district court had granted the motion because the complaint did not make any factual allegations providing an approximation of the overtime hours worked, plaintiff’s hourly wage or the amount of unpaid overtime wages. The district court found that the allegations in the complaint fell “short of the line between possibility and plausibility of entitlement to relief,” under Rule 8, as construed in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

The Ninth Circuit addressed the First Circuit’s Pruell decision, a trilogy of cases decided by the Second Circuit, an unpublished Eleventh Circuit decision and a Third Circuit decision. The Ninth Circuit concluded, “We are persuaded by the rationale espoused in the First, Second and Third Circuit cases. Although we agree with the Eleventh Circuit that detailed factual allegations regarding the number of overtime hours worked are not required to state a plausible claim, we do not agree that conclusory allegations that merely recite the statutory language are adequate.” The Court adopted the standard that in order to survive a motion to dismiss, a plaintiff asserting a claim to overtime payments must allege that she worked more than 40 hours in a given workweek without being compensated for the overtime hours worked during that workweek. Landers did not allege facts showing that there was a specific week in which he was entitled to, but denied, minimum wage or overtime.

Unanimous Supreme Court Finds Time Spent for Security Screenings is Not Compensable

December 9, 2014 by

On Tuesday, December 9, 2014, the U.S. Supreme Court issued a unanimous decision providing clear guidance as to what constitutes compensable work under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act.

The case, Integrity Solutions, Inc. v. Busk, involved a contractor to Amazon.com whose employees retrieved products from the shelves in Amazon’s warehouses and packaged them for delivery to Amazon’s customers.  At the end of each shift the employees were required to undergo a security screening before leaving the warehouses.  The employees claimed that the time spent waiting for and undergoing the screenings entailed about 25 minutes per day, and through the lawsuit, they were seeking overtime compensation for that time.  They also claimed that the time could have been significantly shortened to a de minimis period if the shifts were staggered or more screening stations were available.  Consequently, they claimed, the time devoted to the screening was for the benefit of the employer or its customer Amazon.com, and therefore should have counted as part of their compensable workweeks.

The Supreme Court disagreed.  Reversing the holding of the Ninth Circuit Court of Appeals, the Supreme Court held that the time spent for the screening was not compensable time.  Applying precedent, the Court noted that the compensable period during a workday stops once the last activity that is “integral and indispensable” to the job’s “principal activity” is performed.  In this case, the principal activity for which the employees were employed were retrieving and packaging goods in the warehouse.

In the opinion written by Justice Thomas, the Court concluded that the screenings at issue did not relate to that principal activity, rather they were only incidental to the job.  Under the Act, such activities – i.e., preliminary or postliminary activities – are not compensable.  Thus, the Court held that the court of appeals applied the wrong test, i.e., whether the screenings were required by and for the benefit of the employer to prevent theft, and instead it should have inquired as to whether the activity was tied to the productive work that the employees were employed to perform.

Consequently, the Court rejected any notion that all time spent for the employer’s benefit is compensable, and specifically held that such a construct is overly broad and improper.  The Court also rejected the argument that the time spent in the screenings could have been lessened and thereby a source of liability since that fact did not alter the finding that the time was unrelated to the principal activity at issue.

Explaining that the time spent on security screenings in this context was postliminary and therefore not compensable, the Court noted that “Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.”  The screenings were not “integral and indispensable” to that work, the Court continued, because they were not “an intrinsic element of those [principal] activities and one with which the employee cannot dispense if he is to perform those activities.”  In this regard, the Court noted, the employer  “could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.”

With this elaboration on the definition of what is a compensable activity, one can only hope that courts will be able to evaluate pre- and post-shift activity cases with more confidence and avoid the recent trend of conflicting holdings on this issue.  Such clear guidance is also of value to employers as they try to make sure that all time that is legally compensable is paid.  Importantly, though, and as expressed by Justices Kagan in her concurring opinion joined by Justice Sotomayer, some pre- and post-shift activities remain compensable since they are integral and indispensable to the job, such donning and doffing certain protective gear for the performance of an employee’s job.

Robert Boonin

Dykema Gossett PLLC

rboonin@dykema.com

Avoid Being the Next Unpaid Intern Headline

November 21, 2014 by

We have all been reading the countless headlines of companies being sued for the failure to pay their so-called interns.  This list includes the LA Clippers, student athletes, and suits against many large companies across the country.  In fact, NBC Universal recently settled a case with its unpaid interns for $6.4 million.

If your company has unpaid interns or is thinking ahead to summer plans for such interns, you should reevaluate those plans.  As always, that pesky Fair Labor Standards Act is likely standing in your way.  There is NO FLSA exception for students or interns.  In fact, the term “intern” appears only once in the FLSA itself, in section 203(e)(2)(a), which exempts Congressional interns from the definition of employee, and only once in the regulations, in 29 C.F.R. Section 541.304(c), where it is explained that medical interns do not have to be paid on any particular basis.

Recently, as part of the increasing trend of FLSA collective actions, unpaid interns have been striking back.  Interns are striking back in alarming numbers claiming to have worked significant hours without any compensation at all.  Companies are claiming that they fall within the narrow “trainee” exception.  But beware, that exception is quite narrow.

if you want to avoid liability for unpaid interns, you must meet all six of the DOL’s criteria for student trainees.

1.The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school.

The closer it is to a classroom or educational setting, the easier it will be to consider the individuals to be trainees. The arrangement might also result in a training certificate that could be listed as a job qualification on subsequent job applications. It would also help if the individual and the entity providing the training could first develop an individualized training plan that would be tailored to help the individual qualify for a specific job or range of jobs with a variety of companies via the training course.

2. The training is for the benefit of the trainees.

This would be an easy argument to make in the case of individuals participating in welfare-to-work programs, but also in any training or internship programs that tend to increase their “hireability” in the open job market.

3. The trainees do not displace regular employees, but work under close observation.

This would also be an easy argument to make, especially in the case of a training “academy” run by a company, but also for a work experience program sponsored by a governmental entity. In the latter case, the government agency would be able to show that were it not for the work experience program, the activities in question would not be taking place. In a true training environment, the trainees are not going to be trusted to do much actual work for the company; the actual production would presumably be done by regular employees, who of course are already trained and are paid for the production work.

4.  The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion his operations may actually be impeded.

This goes hand-in-hand with item # 3 above. It would be important here to document the training process and the before and after figures for comparison. Again, the actual productive work will be done by regular employees; any productive work done by trainees would have to be insubstantial in nature and amount and secondary to the training process.

5. The trainees are not necessarily entitled to a job at the completion of the training period.

Again, this is related to #3 above. The work would not be done at all, or at least certainly not on the schedule that exists, were it not for the existence of the training school or program under which the individuals receive training. The courts find it important to have a written agreement to the effect that trainees have no expectation or guarantee of employment upon completion of the training.

6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.

The courts find it important that there be a written agreement to the effect that payment for the services is neither intended nor expected.

In applying these criteria, courts focus on who primarily benefits from the arrangement.  If the employer is the primary beneficiary, the individuals will be considered employees, but if the individuals are the ones who primarily benefit from the work experience, they will be considered trainees.

If you plan to use unpaid interns, you need to review your program in light of these criteria and determine whether you are obligated to pay the interns.

 

Northern California Voters Approve Minimum Wage and Paid Sick Leave Measures; San Diego Ordinance on Hold

November 12, 2014 by

In September we posted a discussion of the new California paid sick leave law, which takes effect on July 1, 2015. In last week’s general election, Oakland voters signaled they think the state’s paid sick leave mandate does not go far enough. They overwhelmingly approved a paid sick leave initiative modeled on one passed by San Francisco voters in 2006, and that goes well beyond the new state law’s requirements. And voters in both cities approved minimum wage increases that will raise their local minimum wages far higher than either the current federal minimum of $7.25 per hour, or the California state minimum of $9 per hour (scheduled to rise to $10 in 2016).

The Oakland initiative, Measure FF, requires employers to provide their Oakland employees with one hour of paid sick leave for every 30 hours worked beginning in March 2015. Employers with fewer than 10 workers can cap the amount of paid sick leave at 40 hours per year, but employers with 10 or more workers must provide up to 72 hours per year. This is three times the state paid sick leave minimum of three days or 24 hours per year.

That same initiative will increase the minimum wage for employees working in Oakland to $12.25 per hour beginning in March 2015, followed thereafter by annual cost of living increases. The Oakland measure prohibits employers from funding required wage increases by reducing any non-management employee’s benefits. The initiative also requires hospitality employers that collect service charges from customers, including room service delivery chargers or baggage carrying charges, to pass those fees on to their hospitality workers.

San Francisco has long had a minimum wage higher than the state minimum. But in November that city’s voters approved Proposition J, which will raise the current city minimum wage still higher, from its current level of $10.74 per hour to $12.25 per hour on May 1, 2015; $13 per hour on July 1, 2016; $14 per hour on July 1, 2017; and $15 per hour on July 1, 2018, followed thereafter by annual cost of living increases.

Voters in nearby Berkeley approved Measure Q, which calls on the City Council to adopt an ordinance similar to the Family Friendly Workplace Ordinance that San Francisco adopted in October 2013, which allows employees to seek changes to their working arrangements to care for family members with serious health conditions. Measure Q also authorizes the Berkeley City Council to send letters to federal and state officials asking for government employees to have the right to shorter work hours if doing so would not cause operational problems.

Meanwhile, in southern California the San Diego City Council’s minimum wage and paid sick leave ordinance, which we discussed in a July post, has hit a roadblock. In July the council voted to establish a city minimum wage of $9.75 per hour in January 2015, $10.50 per hour in January 2016, and $11.50 per hour in January 2017. The ordinance would also have required employers to provide up to five days or 40 hours of paid sick leave per year beginning in July 2015. The measure met with stiff opposition in the business community, which launched a petition drive to require the council to either rescind the ordinance or to allow the city’s voters to decide its fate. In October the measure’s opponents submitted more than enough signatures, and shortly thereafter the council voted to submit the issue to the voters. The measure is now on hold, and will take effect only if approved by the voters in the June 2016 primary election.

Municipal governments enacting their own minimum wage, paid sick leave and other measures is a relatively new trend that creates headaches for employers by requiring them to apply different rules to different groups of employees based on where they work. But the trend is likely to continue for the foreseeable future, so employers should take all necessary steps to stay abreast of, and comply with, these new local mandates.

“Compliance” Not “Gotcha” is Wage and Hour’s Mission

November 10, 2014 by

By John Ho, Bond, Schoeneck & King, PLLC

Dr. David Weil, the new Administrator of the Wage and Hour Division was the key panelist on a program entitled, “The Department of Labor – Wage and Hour Division – Strategic Enforcement and the Changing Workplace” which took place at the ABA’s 8th Annual Labor and Employment Law Conference last week. Dennis McClelland, fellow member of the Wage and Hour Defense Institute served as moderator for the program and got the unique opportunity to ask Dr. Weil about his vision for the Division.

Dr. Weil told the audience that the Division’s mission is “not to play gotcha” with employers but rather compliance. Dr. Weil said that he believed the Division could achieve greater compliance by using several strategic methods including: 1) statistical data to identify problem industries; 2) directed enforcement; 3) full use of the enforcement toolbox available to the Division such as liquidated damages and civil money penalties; and 4) targeted outreach to employers. Dr. Weil identified several industries that remain high on the Division’s radar including janitorial, hospitality and construction.

Dr. Weil acknowledged what members of the WHDI have experienced recently, the aggressive assessment of liquidated damages and the increased use of civil money penalties in audits. Although Dr. Weil noted that these tools have always been available to the Division, he believed increased use would create greater deterrence.

Mr. McClelland also asked Dr. Weil about the timing for proposed changes to the white-collar exemptions which were expected to be published this month. Dr. Weil would not commit to any specific time frame except to say they were “coming.” At this point, it is highly unlikely that the proposed regulations will be published this year. The WHDI will continue to monitor this development.

DOL Issues Final Rule on $10.10/Hour Contractor Minimum Wage

October 24, 2014 by

On October 7, 2014, the Department of Labor (“DOL”) published final regulations setting a minimum wage of $10.10 per hour under certain federal contracts and subcontracts. The regulations were issued under Executive Order 13658, issued by President Obama on February 12, 2014. The new minimum wage will take effect on January 1, 2015.

  • Which contracts are covered by the higher minimum wage?

The $10.10/hour minimum wage will be applicable to new contracts for construction covered by the Davis-Bacon Act (“DBA”); contracts for services covered by the Service Contract Act (“SCA”); contracts for concessions; and contracts entered into with the Federal Government in connection with federal properly or lands and related to offering services for Federal employees, their dependents, or the general public.

  • What is a “new” contract that will be covered by higher minimum Wage?

The $10.10/hour minimum wage will apply as of January 15, 2015 to “new” contracts. The final regulations define “new contract” as follows:

New contract means a contract that results from a solicitation issued on or after January 1, 2015, or a contract that is awarded outside the solicitation process on or after January 1, 2015. This term includes both new contracts and replacements for expiring contracts. A contract that is entered into prior to January 1, 2015 will constitute a new contract if, through bilateral negotiation, on or after January 1, 2015:

(1) The contract is renewed;

(2)  The contract is extended, unless the extension is made pursuant to a term in the contract as of December 31, 2014 providing for a short-term limited extension; or

(3) The contract is amended pursuant to a modification that is outside the scope of the contract.

  • Which workers are covered by the $10.10 minimum wage?

In the final regulations, DOL provided two distinct subsets of workers that are covered by the higher minimum wage.

  1. Workers performing “on a government contract”

The $10.10 minimum wage will apply to all workers performing “on” a covered contract. In the Preamble to the final regulations, DOL states that it views workers performing on a covered contract as

those workers directly performing the specific services called for by the contract. Whether a worker is performing ‘‘on’’ a covered contract will be determined in part by the scope of work or a similar statement set forth in the covered contract that identifies the work (e.g., the services or construction) to be performed under the contract. Specifically, consistent with the SCA, see, e.g., 29 CFR 4.153, a worker will be considered to be performing ‘‘on’’ a covered contract if he or she is directly engaged in the performance of specified contract services or construction.

Under the final regulations, those workers who are covered by the prevailing wage requirements of the SCA are covered by the new $10.10 minimum wage and will be entitled to that higher minimum wage for all hours worked on a covered contract, regardless of how few those hours are in relation to total hours worked.

  1. Workers performingin connection with a government contract”

The proposed regulations made no distinction between workers performing on a government contract and those performing in connection with a government contract; both groups were covered to the same extent. The final regulations distinguish between the two classes of workers.

DOL has defined a worker performing “in connection with a government contract” as any worker who is performing work activities that are necessary to the performance of a covered contract but who are not directly engaged in performing the specific services called for by the contract itself.

According to DOL, these workers are not entitled to DBA or SCA prevailing wages, but, because they are covered by the FLSA, they are covered by the terms of Executive Order.

Under the final regulations, a worker performing in connection with a covered government contract is not covered by the $10.10 minimum wage if that worker spends less than 20 percent of his or her hours in a particular workweek performing in connection with such contract.

  • Annual adjustment to the minimum wage

Beginning January 1, 2016, and annually thereafter, the Secretary of Labor will determine by how much the $10.10 minimum wage will be increased, based on the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers. DOL must publish the annual minimum wage rate at least 90 days before the new wage rate takes effect.

  • Special provisions for tipped employees

The new minimum wage applies to employee engaged in an occupation in which he or she customarily and regularly receives more than $30 a month in tips. Currently, employers must pay tipped employees minimum cash wage of $2.13 per hour toward satisfaction of federal minimum wage of $7.25 per hour. For contractors covered by the new regulations, however, employers must pay a cash wage of at least $4.90 per hour towards satisfaction of the $10.10 minimum wage. That amount will be adjusted annually, until the hourly cash wage equals 70 percent of the minimum wage applicable at that time to non-tipped employees.

  • Enforcement

The regulations provide for investigations by the Wage and Hour Division of DOL, with enforcement through administrative proceedings. Remedies include the retroactive inclusion of the minimum wage clause in covered contracts, the payment of back wages, withholding of contract payments and debarment.

Free Meals But Breaks Cost Money

September 16, 2014 by

Questions often come up from employees and human resources professionals regarding rest and meal periods under the Fair Labor Standards Act. Most of these questions are the result of confusion by the employee regarding when rest and/or meal periods are required. Under the FLSA, an employer is not required to provide rest or meal periods to an employee during his or her shift. These requirements are often the result of state laws, employer policies or collective bargaining agreements that mandate breaks and meal periods. It is important to determine whether a state law, employer policy or collective bargaining agreement applies, as these may be the source for a required rest and/or meal period while working.

Under the FLSA, rest periods are considered compensable time. Employers should not require employees to “clock out” for rest periods. Rest periods usually run from approximately 5 minutes to about 20 minutes in duration. Employees are usually permitted to have a snack, a cup of coffee or soda, smoke (unfortunately) or use their cell phones during the break. If an employer provides breaks, the employer should not offset the break time against other working time or other on-call time. The key here though is that breaks are provided for relief to the employees and to promote efficiency in the workplace and should be treated as compensable time.

Meal periods, on the other hand, are treated differently. A meal period that is at least 30 minutes in duration does not need to be compensable time. An employee can be required to “clock out” and eat his or her meal unpaid provided that the employee is not required to perform work during the meal period. For example, if a receptionist is required to eat lunch at the reception desk, even though technically she is off the clock, she would still be working as she would be responsible for greeting visitors and accepting the mail or deliveries during her lunch break. Under certain circumstances, a meal period may be shorter than 30 minutes and still be considered non-compensable work time. These situations are very unusual and generally do not apply in the modern workplace. Meal periods should be at least 30 minutes long and employee should be relieved of all duties during this time.

Some employers, in my experience, have required employees to take their meal breaks in the designated employer cafeteria, or if none is provided, in the employer provided break or lunch room. This ensures that employees are not hanging around their work stations and working “off the clock” even if they are doing so without the express permission of the employer. Other employers who I worked with actually require employees to leave the office and eat their lunch either in the designated break room or at a local restaurant in order to ensure that the meal period is actually taken and also to ensure that customers do not come in to the establishment and form the impression that the employees are being paid and not working. (Imagine the classic example of the county road worker sleeping in his truck during his lunch break and members of the public thinking he is sleeping on the job!)

We always recommend employers maintain a clear policy regarding break periods and meal periods under the FLSA. If breaks and meal periods are given, ensure that employees are disengaged from work during the meal period if they are required to clock out. Remember also to check your state laws, employer policies and any applicable collective bargaining agreements to determine if any additional requirements apply.

Paul Bittner, Ice Miller LLP

Governor Brown Signs Bill Mandating Paid Sick Leave in California

September 10, 2014 by

Today Governor Jerry Brown signed a bill requiring California employers to provide paid sick leave to their employees beginning July 1, 2015.

The Healthy Workplaces, Healthy Families Act of 2014 requires employers to provide paid sick leave to employees who work in California for 30 or more days within a year from beginning employment. Paid sick leave will accrue at a minimum rate of one hour for every 30 hours worked, and an employee may begin using it beginning on the 90th calendar day of employment.

Employers may limit an employee’s use of paid sick leave to 24 hours or three sick days in each calendar year, and may provide 24 hours or three days in bulk at the beginning of the year in lieu of an accrual process. Employers may set a minimum increment of at least two hours for the use of paid sick leave, which can be used for the personal illness or preventive care of the employee or the employee’s family member, or to recover from domestic violence, sexual assault, or stalking. Employees are required to provide their employers with reasonable advance notification of their need to use paid sick leave if the need is foreseeable, or “as soon as practicable” if it is not foreseeable.

Accrued paid sick leave will carry over to the following year of employment, but employers are entitled to cap an employee’s accrual at 48 hours or six days. Employees are not entitled to a payout of accrued but unused paid sick leave upon separation from employment, but if an employee is rehired within one year from the date of separation, any previously accrued but unused leave must be reinstated.

Employers are required to maintain records of their employee’s accrual and use of paid sick leave for at least three years. The notice provided to an employee at the beginning of employment pursuant to the Wage Theft Prevention Act must include notice of the employee’s right to paid sick leave, and employers must provide each employee with a notice of the amount of paid sick leave or paid time off available to the employee on the employee’s itemized wage statement, or in a separate writing provided on each pay date. Employers must also display a poster created by the State Labor Commissioner notifying employees of their paid sick leave rights. Employers are prohibited from retaliating against an employee for using paid sick leave, filing a complaint with the Labor Commissioner alleging retaliation, or cooperating in an investigation of an alleged violation by the employer.

Employers that already provide paid sick leave or paid time off that satisfies the new law’s requirements are not required to provide any additional paid sick leave. The new law exempts in-home support workers, most employees covered by collective bargaining agreements that provide paid sick leave or paid time off, and construction industry employees covered by collective bargaining agreements entered into before January 1, 2015, or that expressly waive the requirements of the new law.

Employers with California-based employees should immediately begin making arrangements to comply with the new law. Employers with existing paid sick leave or paid time off policies should ensure their existing plans comply with the law, or adjust those policies as necessary.

Aaron Buckley – Paul, Plevin, Sullivan & Connaughton LLP – San Diego, CA

Sixth Circuit Limits Enforcement of Key Employment Contractual Waivers in FLSA Cases

September 1, 2014 by

Over the past few years, there has been considerable litigation over whether employees may contractually waive their right to bring class or collective actions against their employers.

For example, the NLRB in its D.R. Horton line of cases believes that arbitration agreements limiting employees in their right to bring collective or class actions are not enforceable since they arguably waive an employee’s Section 7 right to engage in concerted activities. The courts have not agreed with the NLRB, and applying the Supreme Court’s recent line of cases upholding arbitration agreements proscribing class relief, have held that the congressional support for arbitration vis-à-vis the Federal Arbitration Act is a stronger policy than other rights relating to the ability to seek class relief. Further, the courts have construed the FAA to hold that unless an arbitration agreement clearly permits the seeking of class relief through arbitration, such relief is not available – through arbitration or otherwise. See generally Owen v. Bristol Care, Inc., 702 F.3d 1050, 1054-55 (8th Cir. 2013)(arbitration agreement containing class action waiver is enforceable in claim brought under FLSA); Sutherland v. Ernst & Young LLP, 726 F.3d 290,295-96 (class action waiver must be enforced pursuant to the U.S. Supreme Court’s decision in American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013)); Parisi v. Goldman, Sachs & Co., 710 F.3d 483, 486 (2d Cir. 2013) (undisputed that arbitration agreement did not provide for arbitration agreement on class-wide basis); Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326, 1134-36 (11th Cir. 2014) (arbitration agreement which waives collective claims is enforceable); D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 558-61 (5th Cir. 2013) (class and collective action waivers are not inconsistent with the NLRA’s Section 7 concerted activity protections, and therefore such waivers in arbitration agreements between employers and employees are enforceable); Reed Elsevier, Inc. v. Crockett, 734 F. 3d 594, 600 (6th Cir. 2013) (where agreement is silent on the availability of class relief through arbitration, class relief is not available). See also Huffman v. The Hilltop Companies, LLC, 747 F.3d 391, 398 (6th Cir. 2014) (contract silent on right for bringing class claim in arbitration precludes the arbitration of class claims).

Recently, though, the Sixth Circuit Court of Appeals (i.e., the federal appellate court over the judicial districts in Michigan, Ohio, Kentucky and Tennessee) has held that agreements which limit rights under the FLSA which are not covered by the FAA may not be enforceable. That is, while such agreements may be enforceable if they are in the context of an FAA covered arbitration agreement, if the agreement is just an ordinary employment or separation agreement – and not an arbitration agreement – such agreements may not be enforceable.

The first of this line of cases was Boaz v. FedEx Customer Information Services, Inc., 725 F.3d 603 (6th Cir. 2013). In Boaz the employee signed an employment agreement requiring the bringing of claims within six months notwithstanding longer statutes of limitations. In the FLSA context, the court held, this waiver amounted to a waiver of a substantive right to wages under the FLSA, and since waivers of rights under the FLSA are not enforceable, the court refused to enforce this waiver. The court also inferred that its decision may have been otherwise if the case arose under an arbitration agreement “due to the strong federal presumption in favor of arbitration.” Id. at 606-07.

On July 30th, the Court of Appeals more formally articulated its view that waivers in arbitration agreements are different than waivers in other agreements. In Killon v. KeHE Distributors, LLC¸ Case Nos. 13-3357/4340 (6th Cir. July 30, 2014), the court for the first time addressed whether waivers to bring class or collective claims in non-arbitration agreements are enforceable. The waivers in this case were specified in employment separation/severance agreements. The employees signed those agreements and later attempted to join a collective action for unpaid overtime. The district court held that such waivers were enforceable, but the Sixth Circuit reversed the trial court. The Sixth Circuit equated the right to participate in a class action with the right to sue within the full limitations period allowed by the FLSA, i.e., a right deemed non-waivable under Boaz. The court reiterated, though, that its holding may have been otherwise if the case entailed an arbitration agreement. Outside of that context, however, that Killon waivers were declared void. The court concluded: “Because no arbitration agreement is present in the case before us, we find no countervailing federal policy that outweighs the policy articulated in the FLSA.” Id. at *23.

While few other courts have been presented with the precise issue as to whether the existence of an arbitration agreements is a distinction which makes a difference, the Sixth Circuit’s holdings bring into jeopardy the ability to enforce agreements which shorten limitation periods or waive class relief in the context of FLSA disputes. Such agreements may be enforceable in other contexts, but drafting carve-outs in such waivers may be cumbersome, particularly if they are tailored to only apply within the Sixth Circuit.

To be sure, the merits of the court’s holdings in these cases will likely be subject to further debate and review by courts in other circuits since there is contrary authority suggesting that these “rights” are procedural and not substantive, and are therefore waivable. At this time, though, such is not the rule in Sixth Circuit and that will likely remain the case until the Supreme Court weighs-in, if ever. Consequently, employers – particularly those within the Sixth Circuit – should avoid using such waivers unless they are part of arbitration agreements.

Ninth Circuit Upholds Judgment in Favor of a Police Officer Who Claimed Retaliation for Testifying in a Fair Labor Standards Act Lawsuit

July 28, 2014 by

July 28, 2014
By Malani L. Kotchka, Lionel Sawyer & Collins

Police officer Leonard Avila periodically worked through his lunch break but did not claim overtime. The LAPD deemed Avila insubordinate for not claiming overtime and fired him. He was terminated only after Avila had testified in a Fair Labor Standards Act lawsuit brought by a fellow officer Edward Maciel who sought overtime pay for working through his lunch hour.

Avila then brought his lawsuit claiming that he was fired in retaliation for testifying in violation of the FLSA anti-retaliation provision, 29 U.S.C. § 215(a)(3). Avila testified under subpoena in Maciel’s lawsuit that he and many other LAPD officers, including his supervisors, operated under an unwritten policy of not claiming overtime for working through lunch. After Avila testified, the LAPD filed an internal investigation complaint against him and another officer who testified at the Maciel trial alleging that they had been insubordinate by not submitting requests for overtime. Both Avila and the other officer were fired. The jury found in favor of Avila on his FLSA claim and awarded him damages of $50,000. The district court entered a judgment on the jury verdict and later amended it to award Avila $50,000 in liquidated damages and $579,400 in attorney’s fees.

The Ninth Circuit Court of Appeals affirmed the jury verdict in Avila v. LAPD and held that the uncontested evidence in the case was that Avila would not have been fired had he not testified. The only officers disciplined for the overtime violations were those who had testified in the Maciel action. Furthermore, the only evidence introduced at the disciplinary hearing was Avila’s testimony in the Maciel matter. Employers should be very careful and should consider this decision when contemplating discipline of employees for misconduct which comes to light through testimony in an FLSA lawsuit.


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