Kentucky Employment Law Blog

Are Social Workers Exempt from Overtime Pay Requirements?

One of the exemptions to the overtime pay requirements is the "learned professional" exemption, which applies to jobs requiring "advanced knowledge customarily acquired by a prolonged course of specialized intellectual instruction."  The Ninth Circuit Court of Appeals ruled recently that the "learned professional" exemption did not apply to social workers in Solis v. State of Washington DSHS, No 10-35590 (9th Cir., 9/9/11).  

Key to whether the "learned professional" exemption applies is the degree to which a required course of instruction is directly related to the job's duties, the Court asserted, citing to several authorities including the following:

• Dybach v. State of Florida Department of Corrections, 942 F.2d 1562 (11th Cir.1991), which held that probation officers, who were required to have a bachelor's degree in "any field," did not qualify for the  “learned professional” exemption despite a requirement of one year of prior experience in law enforcement or corrections. 
• Fife v. Harmon, 171 F.3d 1173 (8th Cir. 1999), where the Eighth Circuit held that aviation operation specialists did not meet the "learned professional" exemption, because the employees acquired theiradvanced knowledge  “from a general academic education or from an apprenticeship” and not from a “prolonged course of specialized study.”
  
  
• Vela v. City of Houston, 276F.3d 659 (5th Cir. 2001), where the court held that emergency medical technicians and paramedics, who were required to complete 200 to 880 hours of didactic training, clinical experience, and field internship, did not satisfy the education prong of the “learned professional” exemption.

The Ninth Circuit ruled that the social workers for the state of Washington did not meet the "learned professional" exemption, because the education requirements for the position were not sufficiently and specifically tailored to the job duties, as the court explained:

An educational requirement that may be satisfied by degrees in fields as diverse as anthropology, education, criminal justice, and gerontology does not call for a “course of specialized intellectual instruction.” Moreover, in this case the net is cast even wider by the acceptance of applicants with other degrees as long as they have sufficient coursework in any of these fields. 

Robert L. Abell
www.RobertAbellLaw.com 

Kentucky Cities & Counties Are Not Immune From Wage & Hour Law

Counties and cities in Kentucky are not immune from the Kentucky wage and hour law, KRS Chapter 337. These local government entities are subject to overtime pay requirements the Kentucky Supreme Court ruled unanimously in Madison County Fiscal Court v. Kentucky Labor Cabinet, No. 2010-SC-00032 (August 25, 2011).

Robert L. Abell
www.RobertAbellLaw.com 

Oral Complaints of Overtime Violations Protected from Retaliation, Supreme Court Rules

Does the Fair Labor Standards Act's antiretaliation provision protect complaints of violations that are made orally? It does the Supreme Court ruled in Kasten v. Saint-Gobain Performance Plastics, No 09-834 (March 22, 2011).

The Fair Labor Standards Act establishes federal wage and hour requirements as well as overtime compensation requirements. A protected complaint regarding a possible violation of the law, the Court ruled, must provide "fair notice" of its intended substance and meet the following criteria:

a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected bythe statute and a call for their protection. This standard can be met, however, by oral complaints, as well as by written ones.

Justice Breyer wrote the opinion for the Court's 6-2 majority; Justices Scalia and Thomas dissented. 

Robert L. Abell
www.RobertAbellLaw.com

Racing Officials Not Exempt From Overtime Requirements

Racing officials, a placing judge, a paddock judge, a horse identifier, and a clerk of scales, are not exempt from the overtime compensation requirements of the Fair Labor Standards Act (FLSA) the Fourth Circuit has ruled in Desmond v. PNGI Charles Town Gaming, No. 08-1216 (April 30, 2009). The Court reversed a district judgment and ruled that the racing officials’ positions did not fall under the administrative exemption to the FLSA.

The plaintiffs worked as racing officials at the Charles Town race course in the positions of placing judge, paddock judge, horse identifier, and clerk of scales during horse racing at that facility. They filed suit under the FLSA seeking overtime compensation, because they regularly worked more than 40 hours per week.

The issue was whether the racing officials’ positions fell under the administrative exemption to the overtime requirement. The administrative exemption has three components: (1) the employee must be compensated at a salary rate of not less than $455 per week; (2) the employee’s primary duty must consist of the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and (3) the employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of significance.

The court ruled that the racing officials’ jobs were not directly related to the general business operations of the race course. The court noted that the racing officials have no supervisory responsibility and do not develop, review, evaluate, or recommend business policies or strategy with regard to the horse races put on by their employer. While acknowledging that the racing officials’ jobs were important to the operation of the racing business and indeed that state law required the positions to exist, the court concluded that the positions “are unrelated to management or the general business functions of the company.”

 The court also analogized the racing officials’ work to those of a manufacturing production employee, stating that the position of racing official consists of “the day-to-day caring out of [Charles Town Gaming’s] affairs to the public, a production-side role.” Therefore, the court ruled that the racing officials’ position does not satisfy the requirements for the administrative exemption under the FLSA.

Robert L. Abell
www.RobertAbellLaw.com

Wal-Mart Settles Overtime and Break Time Lawsuits

Wal-Mart has agreed to settle dozens of lawsuits for unpaid overtime, claims that employees were forced to work off-the-clock, claims that employees' time cards were changed by store managers and claims that employees were denied break time required by wage and hour laws in many states, the New York Times reports, "Wal-Mart Settles 63 Lawsuits Over Wages."  The amount of the settlement will be between $352 and 640 million that will depend on workers' filing claims for wages due them.  The settlement covers 63 lawsuits pending in 42 state and federal courts.  

Wal-Mart recently settled a wage and hour lawsuit in Minnesota for $54 million, see "Working Off The Clock and Missed Breaks Law Suit Settled by Wal-Mart."  That settlement followed a state court verdict against Wal-Mart, see "Wal-Mart Found Liable For Underpaying Workers." 

Robert L. Abell

www.RobertAbellLaw.com

Overtime Case Yields $35 Million To Dollar General Store Managers

Store managers for Dollar General stores were awarded $35 million plus in an unpaid overtime case decided by the Eleventh Circuit Court of Appeals in Atlanta, Morgan v. Family Dollar Stores, Inc., No. 07-12398 (11th Cir. December 16, 2008).  The court ruled that 1424 store managers were due $17,788.029.74 in unpaid overtime and an equal amount as unliquidated damages based on Dollar General's willful violations of the Fair Labor Standards Act (FLSA).

 

The case turned on whether the store managers were exempt employees falling within the "executive exemption" to the FLSA.  The court ruled that the store managers were not exempt based on the following:

• store manages spent 80-90% of their time performing manual labor tasks such as stocking shelves, running the cash registers, unloading trucks, and cleaning the parking lots, floors and bathrooms   
• performing manual labor was included in the job description as "Essential Job Functions" of the store managers 
• store managers rarely exercised any discretion because the operations manuals or district managers controlled virtually every aspect of a store's day-to-day operations 
• store managers were closely supervised by district managers, who exercised practical managerial authority over each store 
• the store managers' pay rate was only slightly higher than the hourly rate of their assistant store managers

These factors led the court to conclude that "sweeping corporate micro-management, close district manager oversight, and fixed payroll budgets left store managers little choice in how to manage their stores and with the primary duty of performing manual, not managerial, tasks."  Therefore, the Dollar General store managers did not fall within the "executive exemption" to overtime pay under the Fair Labor Standards Act.

Another class action lawsuit for overtime was recently filed by misclassified store managers in Jacksonville, Florida. See "Misclassified Managers Sue Dollar General for Overtime."

Store managers for Lush Cosmetics filed suit also in Florida claiming that they were misclassified as exempt from overtime. See "Claiming They Were Misclassified Managers Sue for Overtime."
Robert L. Abell

www.RobertAbellLaw.com

Stockbroker's Unpaid Overtime Case Against JPMorgan To Go Forward

A class action lawsuit by stockbrokers for unpaid overtime compensation against JPMorgan may go forward, a federal district judge has ruled, Krichman v. JPMorgan, No. 06-CV-15305 (S.D.N.Y.).  The stockbrokers claim that they were compensated "on a commission basis" and did not receive payment for hours worked beyond forty in a work week.  They also claim that losses sustained by customers were deducted from their commissions.  The proposed class would consist of all individuals employed by JPMorgan and related companies since November 28, 2003.  A company of the class action complaint can be read here.

Robert L. Abell

www.RobertAbellLaw.com

Working Off The Clock and Missed Breaks Lawsuit Settled By Wal-Mart

A lawsuit to recover unpaid wages for employees who were forced to work off the clock and to skip meal breaks has been settled by Wal-Mart for $54 million, the New York Times reports, "Wal-Mart To Pay $54 Million To Settle Wage Suit."  Last summer a state court in Minnesota found that Wal-Mart managers had made employees complete computerized in-house training off the clock and both compelled and tolerated employees skipping mandatory breaks.  

Robert L. Abell

www.RobertAbellLaw.com

McDonald's Assistant Managers File Class Action For Unpaid Overtime

A class action lawsuit seeking unpaid overtime compensation filed on behalf of McDonald's assistant managers claims that assistant managers were misclassified as exempt employees during a mandatory one to three month mandatory training period.  A copy of the assistant managers' complaint can be seen here. 

The lawsuit alleges that assistant managers are required to complete a one to three month training period during which they "primarily perform the same non-exempt duties as non-managerial non-exempt employees -- i.e., working at the cash register, attending to the drive through window, taking and filling orders, working at the fry and grill stations."  Also, the assistant managers do not perform managerial duties during the training period and "in fact are discouraged from exercising any such independent judgment"; they do not supervise other employees, do not have any hire and fire authority and do not contribute to personnel actions or decisions.  The assistant managers do work in excess of 40 hours per week but are not paid overtime. 

The class action seeks to recovery unpaid overtime compensation for those individuals who worked as assistant manager employees and underwent the mandatory training period from July 18, 2005, to the present at McDonald's that were owned by the parent corporation. 

Robert L. Abell
www.RobertAbellLaw.com