A federal judge has conditionally certified a class action suit of potentially 85,000 current and former employees of the University of Pittsburgh Medical Center (UPMC) for violations of the Fair Labor Standards Act (FLSA).  The suit alleges that UPMC violated the FLSA by denying its employees overtime pay and automatically deducting money from their paychecks for meal breaks even though the employees worked during their entire shift.  Under the FLSA, an employer may not automatically deduct meal breaks from an employee’s wages if the employee has not actually taken the break unless the employer identifies special conditions to support such a policy.  Finding that UPMC failed to identify the special conditions necessary to support the practice of deducting meal breaks regardless of whether employees actually took the breaks, the judge granted conditional certification to the FLSA representative action.  Accordingly, plaintiffs can notify all current and former non-exempt employees from the past three years that they can opt in to the lawsuit.  The case is Camesi et al. v. University of Pittsburgh Medical Center et al and is in the U.S. District Court for the Western District of Pennsylvania.  If you have been subjected to similar unfair practices, visit The Employment Law Group® law firm’s Wage and Hour Practice at http://www.employmentlawgroup.net/PracticeAreas/Non-Payment-of-Wages.asp.

Casey’s General Store Inc. has agreed to pay $12 million to settle two class action suits concerning alleged violations of wage and hour laws.  According to two former assistant managers, the company violated the Fair Labor Standards Act by repeatedly failing to pay them overtime for hours worked in excess of 40 hours per week.  Additionally, the assistant managers alleged that the company denied its employees mandatory meal and rest breaks and required them to work before and after their shifts.  The settlement, which remains subject to state court approval, covers a putative class of over 80,000 employees.   A hearing on the preliminary approvals is scheduled for next Monday, May 18, 2009. 

For more information on wage and hour laws, visit The Employment Law Group® law firm’s Wage and Hour Practice at http://www.employmentlawgroup.net/PracticeAreas/Non-Payment-of-Wages.asp

A California district court has decided that a group of former landscaping employees can proceed with their lawsuit against their former employer, Mega Lighting, Inc. (“Mega”) for violations of the Fair Labor Standards Act (“FLSA”) and the Rackateer Influenced and Corrupt Organizations Act (“RICO”). In Aguilar v. Mega Lighting, Inc., former landscaping employees filed a civil complaint against their former employer, alleging that the company violated the FLSA when it deliberately failed to pay the employees minimum wage and overtime. The employees also alleged that the company retaliated against them when they sought legal counsel regarding possible wage and hour claims. Additionally, the employees alleged that individual members of Mega violated RICO by: (1) engaging in mail and wire fraud, (2) fraudulently obtaining public works projects, and (3) failing to pay the requisite prevailing wages to employees who worked on the public works projects. The district court found that the employees sufficiently alleged Mega’s probable impact on interstate commerce and thus satisfied the jurisdictional requirements under both the FLSA and RICO, and it has let both counts proceed against the company. For more information on wage and hour laws and The Employment Law Group® law firm’s Wage and Hour Practice, click here.

On April 8, 2009, a federal judge ordered Martin & Gass, Inc. (“M&G”) to pay back pay and damages to a former employee for violations of the Fair Labor Standards Act (“FLSA”).  The order  follows a March 2009 verdict, where the jury found that M&G failed to pay the plaintiff, Charles Alford, overtime wages for 288 hours during the time period from June 2005 to March 2008.  After the jury returned a verdict in favor of Mr. Alford, M&G argued that it should not be required to pay liquidated or double damages because it did not willfully violate the FLSA.  The district court rejected this argument, finding that a lack of willfulness by itself is insufficient to demonstrate good faith and negate an award of liquidated damages.  According to the court, an employer may avoid liquidated damages if it can show that its failure to obey the statute was in “good faith and predicated upon such reasonable grounds that it would be unfair to impose…more than a compensatory verdict.”  Finding that M&G failed to make any inquiry before misclassifying Alford as an exempt employee, the court concluded that M&G was “at best extremely careless as to [its] obligation under the FLSA” and thus, it was liable for unpaid overtime as well as liquidated damages. 

This case is significant because it rejects the commonly held notion that liquidated damages under the FLSA can be awarded only where the employer’s conduct is willful and affirms the principle that “liquidated damages…are the norm” rather than the exception for violations of the FLSA.
The order and opinion in Alford v. Martin & Gass, Inc., No. 1:08cv595 (E.D. Va. April 8, 2009) is available here. 

Mr. Alford was represented by Scott Oswald and Nicholas Woodfield, Principals at The Employment Law Group® law firm.  For more information about The Employment Law Group® law firm’s Wage and Hour Practice, visit http://www.employmentlawgroup.net/PracticeAreas/Non-Payment-of-Wages.asp.

Last week, in a Fair Labor Standards Act (“FLSA”) case, a federal judge denied summary judgment to a pharmaceutical company after finding that the former sales representatives were non-exempt employees entitled to overtime payment.  In the complaint, the employees alleged that their employer, Schering Corporation (“Schering”) misclassified them as “exempt” employees and as a result, failed to pay them overtime wages in violation of the FLSA.  In response to the allegations, Schering argued that the former employees were pharmaceutical sales representatives and thus, fell within the FLSA’s outside sales exemption.  The district court rejected Schering’s argument, finding that the pharmaceutical sales representatives did not fit within the outside sales exemption because they did not “make sales or obtain contracts or orders,” as required under the regulations.  Moreover, the court noted that the sales representatives did not have the capacity to carry out sales with the physicians that they visited because their employer prohibited them from entering into contracts with physicians for the prescription or purchase of their employer’s product.  Relying on the plain meaning of the statutory and regulatory texts that define the FLSA’s outside sales exemption, the court concluded that the employees did not “sell” or make a “sale” under the FLSA and must receive time-and-a-half for all hours worked in excess of 40 hours a week.

The takeaway from this case is that the standard for determining whether an employee falls within the “outside sales” exemption is not whether the term “sales” is included in her title, but rather whether the employee actually sells something within the scope of her duties. 

The order and opinion in Kuzinski et al, v. Schering Corp., No. 3:07cv233 (D. Conn. March 30, 2009) is available here.  For information on The Employment Law Group® law firm’s Wage and Hour Practice, click here.

A security guard has filed a complaint in the U.S. District Court for the Southern District of Florida against Wackenhut Corporation (“Wackenhut”) for violations of the Fair Labor Standards Act (“FLSA”).  In the complaint, the former employee alleges that the company violated the wage requirements of the FLSA when it paid him and other similarly-situated employees overtime based on “arbitrary lower, and incorrect, hourly wages,”  instead of the time-and-a-half compensation required by law.  Additionally, the complaint alleges that Wackenhut acted “willfully, intentionally and in reckless disregard of the rights of [the employees],” because it refused to pay the security guards the correct overtime payment despite notice and demand on same.  This is not the first time that Wackenhut has been sued for violations of the FLSA.  In October of 2008, a similar class action was filed against Wackenhut in Kansas, alleging that the company violated the overtime provisions of the FLSA by refusing to compensate its security officers with the statutory minimum rates for regular and overtime hours worked.  Under the FLSA, non-exempt employees are entitled to time-and-a-half for all hours worked in excess of 40 hours per week.  Accordingly, employers who fail to compensate their employees according to the regulations of the FLSA, may be liable for unpaid wages, unpaid overtime, liquidated damages, and attorneys’ fees.  For more information about the FLSA and The Employment Law Group® law firm’s Wage and Hour Practice, click here.

In a wage and hour class action suit, attorneys representing more than 500 employees asked a New York district court to grant final approval of a $2.5 million dollar settlement that was preliminarily approved in October of 2008.  In the complaint, two former servers alleged that their employer, Nobu restaurant, violated the Fair Labor Standards Act (FLSA) by refusing to pay its hourly employees the required minimum wage and by failing to pay overtime.  The complaint also alleged that the restaurant’s servers were improperly forced to share tips with management and other non-tipped employees in violation of state laws.   According to the terms of the settlement agreement, each member of the class action suit will receive approximately $3,300.  For more information about the FLSA and The Employment Law Group® law firm’s Wage and Hour Practice, click here.

In a Fair Labor Standards Act (“FLSA”) collective action against Applebee’s, the U.S. District Court for the Western District of Missouri denied Applebee’s motion to compel interrogatories which required each of nearly 5,600 opt-in employees to account for all duties performed at work since May 2005.  In reaching its decision, the court held that the interrogatories were unduly burdensome and that Applebee’s failed to meet the necessary threshold requirements to compel discovery.   This decision is significant because it reminds employers that they should not rely on the discovery process to determine employees’ work hours, but instead should satisfy their duty under the law which is to create and maintain accurate time records for each employee. 

To learn more about the FLSA and The Employment Law Group® law firm’s Wage and Hour practice, click here.

In Sandoz v. Cingular Wireless, the Fifth Circuit held that if an employee files a timely motion for certification of a collective action under the Fair Labor Standards Act (“FLSA”) that motion relates back to the date the employee filed the initial complaint and prevents an employer from mooting an attempted FLSA collective action by paying the representative employee in full.  This ruling is significant because it demonstrates that while an offer of judgment can moot a FLSA collective action, the relation back principle prevents employers from using Rule 68 as a tool to “pick off” representative employees and avoid ever having to face collective actions.  Thus, finding that the mootness of Ms. Sandoz’s FLSA claim rests on whether she timely filed a motion to certify her collective action, the Fifth Circuit remanded the case to the district court for a consideration of the timeliness and, if necessary, the merits of Ms. Sandoz’s motion to certify. 

For information on The Employment Law Group® law firm’s Wage and Hour practice, click here.  

Hewitt Associates, LLC (“Hewitt”) has agreed to pay $4.9 million to settle a class action suit for alleged violations of wage and hour laws.  The complaint alleged that Hewitt refused to pay hourly employees overtime wages for hours worked in excess of eight hours per day and/or forty hours per week.  The settlement agreement that was conditionally approved on December 8, 2008, resolves a number of pending actions in federal and state courts including: California, Connecticut, Illinois, New Jersey, New York, Pennsylvania, and Wisconsin.  A hearing on final settlement approval is scheduled at 3:00 pm on March 19, 2009.  

The Employment Law Group® law firm routinely represents employees in wage and hour class action suits.  For information about The Employment Law Group® law firm’s Wage and Hour Practice, click here.