Kentucky Employment Law Blog: overtime

overtime

Grooms and Hotwalkers Win Overtime Case

December 26, 2022

Grooms and hotwalkers employed by thoroughbred horse trainer Steve Asmussen were awarded $200,000 plus in overtime pay in a trial court judgment affirmed by the Sixth Circuit in Walsh v. KDE Equine. The appeals court sent the case back for consideration of liquidated damages that would double the amount.

The court described the hours worked each week by these employees as follows:

hotwalkers work 7 days a week from 5 a.m. to 10:30 a.m.
some hotwalkers work some in the afternoon, usually 3:00 pm to 4:30 pm, every other day
hotwalkers typically worked "approximately 44.25 hours per week"
grooms work 7 days a week usually from 5:00 a.m. to 11:00 a.m. and then from "approximately" 3:00 p.m. to 4:30 p.m.
grooms work and can earn extra pay one days when one of the horses they see to is racing
grooms typically work 48.5 to 52.5 hours per week

Both the hotwalkers and the grooms were paid a salary and received "extra compensation for additional tasks outside of their normal duties." But most of the hotwalkers and grooms did "not submit timesheets for the additional hours worked, while others submitted inaccurate time sheets." These additional duties included such things as $25 for unloading hay, $25 for transporting horses to the racetrack and $100 for doing laundry.

The Sixth Circuit rejected three arguments from trainer Asmussen that overtime pay requirements had been complied with. First was the claim that the "payment scheme provided a premium for a fixed number of overtime hours[.]" This can comply but only when "an employee works a fixed number of overtime and non-overtime hours." Since the weekly workhours of the grooms and hotwalkers varied, this payment scheme did not comply. Second, the employer argued that its scheme met the "fluctuating work weeks" method which can apply "when employees work varying hours from week to week but are paid fixed base salaries." But this method requires accurate records regarding the hours worked by the employees, and trainer Asmussen's outfit did not do this. Trainer Asmussen last contended that overtime requirements were met because hotwalkers and grooms were paid "lump-sums for additional tasks outside of their normal duties." This didn't apply because the lump-sum payments were too regular.

The overtime owed totaled $211,541.76. The Sixth Circuit sent the case back to the trial court to determine if that amount should be double for trainer Asmussen's willful violation of the overtime law, the Fair Labor Standards Act (FLSA). According to Equibase, horses trained by Steve Asmussen have won 379 races and purse money exceeding $28 million in 2022.

Robert L. Abell
www.RobertAbellLaw.com

Posted at 11:52 AM in Fair Labor Standards Act, overtime | Permalink | Comments (0)

Tags: Fair Labor Standards Act, FLSA, overtime, Sixth Circuit, Steve Asmussen

June 09, 2015

Supreme Court to Review Overtime Class Action Suit Against Tyson Foods

The Supreme Court will review a $2.8 million judgment against Tyson Foods in an overtime class action suit. It appears the Court will consider two questions: (1) whether and how statistical evidence and methods may be used to determine damages on a class-wide basis; and, (2) whether individuals may be included in a class, even if they've sustained no damages. Read the petition for certiorari here.

My estimation is that Tyson will find the Roberts Court quite receptive to their arguments. The Republican-appointed majority on the Court has been more than solicitous of business and corporate interests and almost unfailingly hostile toward individuals and employees. The Court is likely to use the case to virtually eliminate class actions in at least two ways: (1) it will practically eliminate the use of statistical methods, which, in turn, will practically eliminate class actions, since every class member's particularized damages would have to be proved individually just as it would in a non-class action suit; and, (2) while the second point is practically irrelevant, the Court will use it as a vehicle to restrict more generally the formation of class actions by creating some requirement erecting a barrier to being an eligible class member.

An excellent report on the Supreme Court's activity yesterday is by Lyle Denniston as SCOTUSblog.

Robert L. Abell
www.RobertAbellLaw.com

Posted at 09:18 AM in class action, damages, Fair Labor Standards Act, overtime | Permalink | Comments (0)

Tags: Class action, overtime, SCOTUSBlog, Tyson Foods

June 08, 2015

Is A Plaintiff's Testimony Alone Enough to Sustain an Overtime Claim?

Overtime claims arise where there are no records kept of the hours the employee works, or where the records are incomplete and therefore false or are just false, as in fabricated for purposes of litigation. So it can develop that a plaintiff's claim for unpaid overtime may rest on his or her testimony alone regarding the hours he or she worked. Is this enough for a jury to find in the plaintiff's favor? "Yes" answered the Sixth Circuit recently in Moran v Al Basit LLC (June 1, 2015).

The plaintiff, Moran, worked for a couple of different auto repair shops owned by defendant. He claimed that he worked every week 65-68 hours. The defendant offered time sheets purporting to show that Moran worked "exactly thirty hours a week, despite his schedule varying notably from week to week." Furthermore, one of defendant's agent offered that he customarily reviewed security camera footage to verify/determine the employees' work hours, which he then recorded on paper, but, as it happened, these papers could not be located by the time of suit. Moran asserted that their existence had been fabricated in any event.

So Moran's main nearly only evidence was his word. The district judge, Hon. Judith Levy, granted summary judgment to the defendant. The issue before the Sixth Circuit was whether Moran's word alone good enough for a jury to find in his favor:

This appeal raises one simple question: Where Plaintiff has presented no other evidence, is Plaintiff’s testimony sufficient to defeat Defendant’s motion for summary judgment? We hold that it is. Plaintiff’s testimony coherently describes his weekly work schedule, including typical daily start and end times which he used to estimate a standard work week of sixty-five to sixty eight hours. The district court characterized this testimony as “somewhat vague.” However, while Plaintiff’s testimony may lack precision, we do not require employees to recall their schedules with perfect accuracy in order to survive a motion for summary judgment. It is unsurprising, and in fact expected, that an employee would have difficulty recalling the exact hour he left work on a specific day months or years ago. It is, after all, “the employer who has the duty under § 11(c) of the [FLSA] to keep proper records of wages [and] hours,” and “[e]mployees seldom keep such records themselves.” Defendants emphasize the fact that Plaintiff’s testimony is inconsistent with the allegedly contemporaneous timesheets Defendants provided to the court. But these timesheets do not amount to objective incontrovertible evidence of Plaintiff’s hours worked. Plaintiff denies the validity of these timesheets, which were handwritten by Defendants, and contends that Defendants sanctioned his overtime work. Whether his testimony is credible is a separate consideration that is inappropriate to resolve at the summary judgment stage.

Robert L. Abell
www.RobertAbellLaw.com

Posted at 09:14 PM in Fair Labor Standards Act, overtime, wage theft | Permalink | Comments (0)

Tags: Judge Judith Levy, overtime, Sixth Circuit

February 14, 2015

An Employer Who Knows or Has Reason To Know That An Employee's Time Records Underreports Their Work Hours May Not Escape FLSA Liability Based on the Employee's Failure to Fully Report the Hours Worked

Can an employer that knows or has reason to know an employee has worked overtime get out of paying overtime if the employee does not complain immediately about not being paid the overtime? "No" answered the Eleventh Circuit recently in Bailey v. Titlemax of Georgia in reversing a summary judgment granted by U.S. District Judge Marvin H. Shoob of the Northern District of Georgia.

Santonias Bailey was a victim of wage theft while working for Titlemax of Georgia. His supervisor told him that Titlemax did not pay overtime and made him work off the clock. His supervisor also altered his time cards to reduce the amount of time they reported Bailey had worked. Bailey sued for his overtime pay after leaving Titlemax's employment.

Titlemax's answer was, basically, so what? It blamed Bailey and pointed out that he had not followed its policies of reporting his supervisor's misconduct and accurately reporting his time worked on his time cards. According to Titlemax, Bailey was to blame for having his wages stolen and was entitled to nothing. This succeeded in the district court, which granted Titlemax summary judgment and dismissed Bailey's overtime claim.

The Eleventh Circuit reversed. It framed the question as follows:

if an employer knew its employee underreported his hours, can it still assert equitable defenses based on the employee's conduct in underreporting as a total bar to the employee's FLSA claim?

Put another way, the question is whether an employer can get away with intimidating an employee into letting wage theft slide? The FLSA was intended to police and prevent just that sort of abuse the Eleventh Circuit observed: "the goal of the FLSA is to counteract the inequality of bargaining power between employees and employer." This principle guided the court's holding:

If an employer knew or had reason to know that its employee underreported his hours, it cannot escape FLSA liability by asserting equitable defenses based on that underreporting. To hold otherwise would allow an employer to wield its superior bargaining power to pressure or even compel its employees to underreport their work hours, thus neutering the FLSA's purposeful reallocation of that power.

The court also noted that it could find no case where an employer's wage theft had been excused where the employer knew the employee's work hours were underreported and still it got away with wage theft because the employee did not immediately demand full compensation.

The Eleventh Circuit's unanimous opinion was authored by Circuit Judge Beverly Martin joined by Circuit Judge Lanier Anderson and visiting District Judge Denise Cote of the Southern District of New York.

Robert L. Abell
www.RobertAbellLaw.com

Posted at 03:32 PM in Fair Labor Standards Act, overtime, wage theft, wages | Permalink | Comments (0)

Tags: Eleventh Circuit, FLSA, overtime, wage theft

December 18, 2014

Wage Theft - The Good Guys Win One in Braun v Walmart

Attorney Victoria Ni discusses on the Public Justice blog the recent decision by the Pennsylvania Supreme Court upholding a $181 million verdict against Walmart for wage theft: A Victory Against Wage Theft in Braun v. Walmart.

Imagine that: the good guys win one, and employees get paid for the work they do.

Robert L. Abell
www.RobertAbellLaw.com

Posted at 09:53 AM in overtime, wage theft | Permalink | Comments (0) | TrackBack (0)

Tags: class action, Public Justice, wage theft, Walmart

December 13, 2014

Getting Paid for Work Done: Doesn't the Employer Define The Employee's Principal Activity?

To me the issue of whether an employee's time doing something should be compensated by his or her employee reduced itself to a simple question:

Did the employer require it at the pain of firing the employee if the employee did not do it?

If the answer to this question is "yes," the employee should be paid for the time. But the Supreme Court's decision earlier in this week in the Amazon security checkout line case, where it ruled that the 25 minutes or so employees at Amazon warehouses spend waiting to clear a security checkout to make sure they're not stealing anything is not compensable worktime, casts at least substantial doubt on this seemingly obvious principle.

The Court analyzed the case as turning on what was or is the "principal activity" for which the employees were employed. The answer, the unanimous Court concluded, was fetching goods from around the warehouse and readying them for shipping, not waiting in line at a security checkout line.

But this evades reality: if the employer orders the employee to fetch 7 blue bathtubs or get fired, the principal activity for which the employee is employed is fetching blue bathtubs. Likewise, if an employee orders the employee to stand in and clear the security checkout or get fired, the principal activity for which the employee is employed is standing in and clearing that line. It's not one thing: whatever the employer says the employee has to do to keep his or her job is the principal activity for which the employee is employed. And employees should get paid for the time spent doing what their employers require them to do.

There is an excellent discussion and analysis by Anna North on the Op-Talk blog for the New York Times: What the Supreme Court's Decision in the Amazon Case Means.

Robert L. Abell
www.RobertAbellLaw.com

Posted at 08:58 AM in Fair Labor Standards Act, overtime | Permalink | Comments (0) | TrackBack (0)

Tags: Amazon, principal activity

December 10, 2014

Time Spent Waiting In After-Shift Security Checkout Line Not Compensable, Supreme Court Rules

The Supreme Court ruled unanimously yesterday that time spent by employees at an Amazon warehouse checking out through security after the end of their shift was not compensable work time. The decision is Integrity Staffing Solutions v. Busk, No 13-433.

The Court based its ruling on two main points: (1) it likened standing and waiting in the security checkout line to walking out of the workplace after the end of the shift; and, (2) if the time spent on the security checkout were eliminated, neither the employee's effectiveness nor productivity would be affected. These two factors distinguished the time spent waiting in the security checkout line from cases where the Court has held (1) that the time spent by workers in a chemical plant putting on protective clothing was compensable, because without the protective clothing the workers could not do their job safely, and, (2) the time spent sharpening knives by employees in a meat-processing plant was compensable because sharp knives made the butchers more effective.

There is additional coverage of the decision: Supreme Court Rules Against Worker Pay for Screenings in Amazon Warehouse Case in the New York Times; No Overtime Pay for After-Work Security Check at SCOTUSblog.

Robert L. Abell
www.RobertAbellLaw.com

Posted at 01:07 PM in Fair Labor Standards Act, overtime | Permalink | Comments (0) | TrackBack (0)

Tags: overtime, SCOTUSblog, Supreme Court

November 19, 2014

Overtime & Salaried Workers - So Why Did Overtime Disappear?

In 1975, 65% of salaried workers in the United States were paid overtime. In 2013, only 11% of American salaried workers were paid overtime. So what happened?

Good lobbying by corporations; the increase of corporate PAC money in our elections; the decline of labor unions for another.

To be exempt from overtime (meaning you don't have to paid overtime), a salaried workers has to be paid a minimum of $455.00 per week ($455 divided by 40 = $11.38 per hour). There are other factors that make for the exemption also. If this threshold were the equivalent to what it was in 1975 (adjusted for inflation) the weekly minimum threshold would be $1327 or $69,000 a year.

President Obama should act to make the overtime standard the same today as it was for salaried workers in 1975; the minimum weekly should be changed to $1330.

The point is made in an excellent article in by Nick Hanauer in Politico: Whatever Happened to Overtime?

Sign a petition to President Obama at Daily Kos: What About Overtime?

Robert L. Abell
www.RobertAbellLaw.com

Posted at 10:16 AM in Fair Labor Standards Act, overtime | Permalink | Comments (0) | TrackBack (0)

Tags: overtime, salaried workers

September 15, 2014

Health Insurance Case Managers File Class Action for Unpaid Overtime

Health insurance case managers, who are involved in the pre-approval, pre-certification or pre-authorization of health care procedures, have filed an interesting class action for unpaid overtime against Centene Management Company in federal district court in Seattle. The case is Randolph v Centene Management Company, No. 14-5730 (WD Wash).

Centene provides administrative and claims management services to managed care companies that operate government-sponsored health insurance plans. The key issue in the case is whether the case managers are or are not exempt from overtime pay requirements. The case managers describe their job duties as follows:

As Case Managers, Plaintiff’s and the putative class members’ primary job duty was non-exempt work consisting of reviewing medical authorization requests submitted by healthcare providers against pre-determined guidelines and criteria for insurance coverage and payment purposes.

The degree to which, if any, the case managers truly exercise discretion and independent judgment will likely determine whether or not they are or are not exempt from overtime pay requirements. Centene draws significant competive and economic advantage by overloading the case managers and refusing to pay any overtime.

Robert L. Abell
www.RobertAbellLaw.com

Posted at 07:54 PM in Fair Labor Standards Act, overtime | Permalink | Comments (0) | TrackBack (0)

Tags: case managers, Centene, class action, overtime

May 05, 2014

Shift Supervisors and Overtime Pay

Employees with supervisor job titles or who have some supervisory authority are often misclassified as exempt from overtime pay. Usually applied to them is the "executive," "supervisor" or "manager" exemption to overtime pay requirements. The Sixth Circuit recently considered application of this exemption in Bacon v. Eaton Corp., No 13-1816 (6th Cir., May 1, 2014).

Plaintiffs were "front line" shift supervisors for more than 20 hourly employees. In turn, the plaintiffs were under the supervision of second-level managers. Their employer, Eaton Corporation, refused to pay plaintiffs overtime claiming the "executive" exemption applied to them. Plaintiffs sued, the district court granted summary judgment to Eaton, and plaintiffs appealed. The issue on appeal was whether the executive exemption applied to plaintiffs.

The executive exemption to overtime pay requirements has a four-part test:

the employee must be compensated on a salary basis of at least $455 per week;
the employee's primary duty must be management of the enterprise or of a customarily recognized department or subdivision of it;
the employee must customarily and regularly direct the work of two or more other employees; and,
the employee must have hire or fire authority or their "suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees [must be] given particular weight."

The Sixth Circuit reversed the summary judgment finding that plaintiffs had created a fact issue regarding whether the executive exemption applied to them based on the following:

although plaintiffs completed probationary evaluations for employees they supervise, Eaton did not place great weight on those evaluations;
sometimes the plaintiffs submitted their evaluations after the probationary employees' probation had ended, a reality showing they had no influence on whether or not the probationary employee was hired;
the plaintiffs' job descriptions did not include providing suggestions as to hiring and firing or other changes in employment status;
Eaton did not follow their disciplinary recommendations and sometimes ignored them completely.

In essence, the Sixth Circuit ruled that the plaintiffs had presented enough evidence showing that Eaton did not pay much if any attention to their evaluations or other inputs to the personnel process for a jury to find that the "executive exemption" did not apply to them. The court also stated that: "As a matter of law, an employee who merely carries out the orders of a superior to effectuate a change in status is not performing exempt executive duties." Therefore, the case was remanded for trial.

Senior Circuit Judge Damon Keith wrote the opinion for the Sixth Circuit.

Robert L. Abell
www.RobertAbellLaw.com

Posted at 10:26 AM in Fair Labor Standards Act, overtime | Permalink | Comments (0) | TrackBack (0)

Tags: executive exemption, Judge Keith, overtime, Sixth Circuit

November 13, 2013

Is Wage Theft A National Epidemic?

According to the latest information from the U.S. Department of Labor wage theft is a national epidemic: more money in earned wages are stolen each year from working people than is robbed from gas stations, banks and convenience stores put together. The wage theft comes in two forms: (1) overtime that is earned but not paid; or, (2) straight wages that are simply not paid.

The Huffington Post reports: L0w-Wage Workers Are Robbed More Than Banks, Gas Stations and Convenience Stores Combined.

Robert L. Abell
www.RobertAbellLaw.com