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Articles Posted in Wage Cases

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To determine whether a person is an employee or independent contractor for purposes of the Fair Labor Standards Act (“FLSA”), courts examine several factors to determine the “economic reality” of the relationship between the alleged employee and employer. Merely putting an independent contractor label on the alleged employee or entering a contract that controls the relationship does not exempt a person from the requirements of the FLSA.  The court’s determination instead is governed by whether that relationship demonstrates economic dependence. Peter Mavrick is a South Florida employment attorney who represents the interests of business and their owners in labor and employment litigation, including lawsuits seeking overtime wages and minimum wages.

The Eleventh Circuit Court of Appeals (“Eleventh Circuit”), i.e., the appellate court governing federal labor and employment lawsuits in the State of Florida, recently ruled in favor of an employer who properly classified a worker as an independent contractor instead of as an employee. The Eleventh Circuit held that the employer owed the worker no overtime wages because he was an independent contractor.  In J. L. Nieman v. National Claims Adjusters, Inc., et al., Case No.: 3:17-cv-01430-HES-JRK (11th Cir. 2019), insurance adjustor J. L. Nieman (“Nieman”) sued National Claims Adjusters, Inc.’s (“National”) and David Ierulli’s (collectively “NCAI”) for failure to pay wages and for retaliatory discharge under the FLSA.

Neiman did not state many facts in his complaint that would support his claim for employee status. The allegations in his complaint suggested that nothing prevented Neiman from working for other insurance companies, and he did in fact do so during his relationship with NCAI.  Neiman’s allegations did not allege that NCAI controlled the number of hours he worked, supervised him, or paid for his professional licensing. Also, Neiman alleged that his belief that his temporary role with NCAI might have “potentially” become a permanent one did not suggest economic dependence.  The district court granted NCAI’s motion to dismiss and found such factors to be indicative of the lack of an employment relationship. Nieman’s appeal followed.

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This is Part Two of the two-part series of articles discussing the overtime wage exemption of truck loaders under the Fair Labor Standards Act (FLSA).  Following the United State Supreme Court’s decisions discussed in Part One, the United States Department of Labor (DOL) issued regulations interpreting the Motor Carrier Act Exemption set forth at 29 C.F.R. § 782.5.  The applicable DOL regulation (at § 782.5(a)) defines “loader” under the Motor Carrier Act (MCA) to mean “an employee of a carrier [under the Motor Carrier Act] … whose duties include … the proper loading of his employer’s motor vehicles so that they may be safely operated on the highways of the country.”  The regulations explain that a loader’s work “directly affects ‘safety of operation’ [of a motor vehicle] so long as he has responsibility when such motor vehicles are being loaded, for exercising judgment and discretion in planning and building a balanced load or in placing, distributing, or securing the pieces of freight in such a manner that the safe operation of the vehicles on the highways in interstate commerce will not be jeopardized.”  Following the DOL’s issuance of this regulation, substantial court litigation followed addressing the meaning, and ultimately the legal enforceability of this regulation.  Federal appellate court decisions have viewed the DOL regulation as an overeach of the DOL’s authority that properly resides with the Department of Transportation.  The Mavrick Law Firm defends businesses against overtime wage claims.

A relatively recent decision from the United States Court of Appeals for the Eighth Circuit in Williams v. Central Transport International, Inc., 830 F.3d 773 (8th Cir. 2016), rejected the DOL’s reference to “exercising judgment and discretion” set forth in 29 C.F.R. § 782.5(a) as “not the governing standard.”  Citing the Supreme Court’s decision in Levinson v. Spector Motor Serv., 330 U.S. 649, 67 S.Ct. 931 (1947), the Eighth Circuit in Williams stated that “the DOL has no authority to define what employees are subject to the Secretary of Transportation’s jurisdiction and therefore fall within the MCA Exemption … Accordingly, we give no weight or deference to the DOL’s regulation purporting to define who is an exempt loader.”  Williams further explained that:

“the DOL regulation, 29 C.F.R. 782.5(a), is contrary to the Supreme Court’s governing standard.  The ICC asserted jurisdiction over loaders because ‘a motor vehicle must be properly loaded to be safely operated on the highways’ … ‘What the [ICC] intended to cover was the physical act of loading freight in a safe manner.’ … ‘[L]oaders, even if closely supervised, remain within I.C.C. jurisdiction.’ … Thus, Pyramid’s de minimus exception ‘is not based upon whether the worker was supervised in activities that have an undeniable, direct effect on safety,’ such as loading a trailer bound for interstate travel. … [¶] Based on the Supreme Court’s controlling precedents, we conclude that, if an employee spends a substantial part of his time (as defined in Levinson, Pyramid, and Morris) participating in or directing the actual loading of a motor vehicle’s common carrier’s trailers operating in interstate or foreign commerce, the Secretary of Transportation has the authority to regulate that employee’s hours of service and the MCA Exemption applies, regardless of the employee’s precise role in the loading process.”

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This article is Part One in a two-part series of articles discussing the exemption of loaders from the wage-hour requirements of the Fair Labor Standards Act (FLSA).  Businesses whose works load large trucks transporting goods in interstate commerce can defend themselves from overtime and minimum wage claims.  Under the Motor Carrier Act exemption to the FLSA, loaders of trucks whose vehicle weight exceeds 10,001 pounds and meeting the “interstate commerce” requirement can be exempt from the overtime and minimum wage requirements of the FLSA.  The Mavrick Law Firm has successfully defended many businesses against overtime and minimum wage lawsuits by means of the Motor Carrier Act Exemption in Miami-Dade, Broward, and Palm Beach Counties.

To understand the Motor Carrier Act exemption to the FLSA, it is important to understand its enactment vis-à-vis the FLSA.  Enacted in 1935, the Motor Carrier Act authorized the Interstate Commerce Commission (ICC) to set the “qualifications and maximum hours of service” for employees of motor vehicle common carriers.  See 49 U.S.C. § 304(a), which was later repealed.  Congress transferred the ICC’s functions to the Secretary of Transportation with some revision of the statute, and this jurisdiction remains.   See 49 U.S.C. § 31502(b).  In 1938, Congress enacted the FLSA, which empowered the Secretary of Labor to regulate, inter alia, the maximum hours of covered employees.  See 29 U.S.C. § 207(a)(1).  Congress included the Motor Carrier Act Exemption to the FLSA to avoid potentially overlapping jurisdictions.  In the following years, the United States Supreme Court issued a series of decisions interpreting the Motor Carrier Act Exemption.

In United States v. American Trucking Ass’ns, 310 U.S. 534, 60 S.Ct. 1059 (1940), the Supreme Court rejected the contention of interstate truckers that all their employees are exempt, concluding that the ICC’s jurisdiction to regulate maximum hours “is limited to those employees whose activities affect the safety of [motor vehicle] operation.”  In Southland Gasoline Co. v. Bailey, 318 U.S. 44, 63 S.Ct. 917 (1943), the Supreme Court held that the Motor Carrier Act Exemption applies whenever the Secretary of Transportation has the authority to regulate the maximum hours of motor carrier employees, regardless of whether that authority has been exercised.  It is therefore irrelevant that the Secretary of Transportation has never set maximum hours for motor carrier employees.

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The United States Department of Labor (DOL) is a federal agency created in 1913 under the administration of President William H. Taft, which enforces the Fair Labor Standards Act (FLSA) created in 1938 under the administration of President Franklin D. Roosevelt. The DOL’s Wage and Hour Division (WHD) which formed simultaneously with the enactment of the FLSA, has the primary function of administering the federal labor laws of the FLSA. Although the FLSA establishes guidelines for payment of overtime and minimum wage, there are various exemptions under which employees are considered exempt, and thus not entitled to compensation for overtime. Peter Mavrick is a Fort Lauderdale attorney who has extensive specialized experience dealing with the FLSA and its exemptions.

One of these exemptions is the “professional exemption,” which was analyzed by the United States Court of Appeals for the Eleventh Circuit in Dybach v. State of Fla. Dep’t of Corr., 942 F.2d 1562, 1564 (11th Cir. 1991). In Dybach, the employee was an adult probation officer employed by the Department of Corrections of the State of Florida, who alleged that her employer violated the FLSA by not paying overtime wages. She filed a lawsuit seeking unpaid overtime wages and liquidated damages. The employer fought the lawsuit and contended it owed nothing because the employee was an exempt professional.

The DOL has recognized four distinct types of exempt professional employees: (1) “learned” professionals; (2) “artistic” or “creative” professionals; (3) “teachers”; and (4) employees engaged in the practice of law or medicine. See 29 C.F.R. § 541.301-304. It is important to note, however, that this list is not exhaustive as the DOL is constantly continuing its efforts to recognize other types of “professional employees,” such as the computer professionals exemption. For the employee to be employed in a bona fide professional capacity under the FLSA, the employee’s primary duty must be work requiring advanced knowledge in a specialized field acquired by prolonged study. This primary duty must meet three requirements pursuant to 29 C.F.R. § 541.301(a)(1)—(3): (1) the employee must perform work requiring advanced knowledge; (2) the advanced knowledge must be in a field of science or learning; and (3) the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

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The use of the two-tier method to determine whether collective actions should proceed under Section 216(b) of the Fair Labor Standards Act (“FLSA”) is inappropriate because it: (1) conflates Rule 23 standards with non-applicable wage and overtime claims under the Fair Labor Standards Act; and (2) wastes judicial resources and the resources of the parties. While the two-tier approach is popular among the district courts, the Eleventh Circuit has stressed that “[n]othing in [the Eleventh Circuit’s] precedent … requires district courts to utilize this approach. Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001). Thus, courts should consider the utility of authorizing notice under Section 216(b) rather than relying on jurisprudential concerns that are based in “imprecise pleading and stare decisis yield[ing] path-dependence and lock-in.” Turner v. Chipotle Mexican Grill, Inc., 123 F. Supp. 3d 1300, 1306 (D. Colo. 2015).

The two-tier approach is a method of determining whether collective actions should proceed under Section 216(b). The first phase uses a very lenient standard to determine whether the named plaintiffs are similarly situated to the putative opt-in plaintiffs and whether there are similarly situated individuals who want to join the litigation. Most plaintiffs clear the low bar of the first phase, just to, in most cases, have their classes de-certified in second phase when the court makes a factual determination on the “similarly situated” issue. See Hipp 252 F.3d at 1218 (“Based on our review of the case law, no representative class has ever survived the second stage of review”).

The conflation of Rule 23 class action standards with the application of 216(b) to collective actions can traced to the 1976 enactment of the Age Discrimination Enforcement Act (“ADEA”). The ADEA authorized similarly situated plaintiffs to aggregate their claims by incorporating 216(b) as its enforcement mechanism. As a result of the proliferation of ADEA lawsuits, the leading cases that address collective action proceedings under section 216(b) are ADEA actions, rather than actions brought under the FLSA. Moreover, because ADEA 216(b) cases often import Title VII discrimination standards that are subject Rule 23 class certification. Thus, what should be a relatively straightforward analysis of wage and overtime claims under the FLSA, is now a confounding analysis that assesses wage and overtime claims with the Rule 23 like two-tiered method, which was designed to address patterns and practices of discrimination. See Turner 123 F. Supp. 3d at 1305–06 (finding that reliance on Rule 23 “class certification” concepts in true 216(b) FLSA cases to be the result of a confluence of factors, including haphazard terminology, a misunderstanding of precedent and legislative intent, and excessive path dependence in the application of stare decisis.) “Rule 23 actions are fundamentally different from collective actions under the FLSA,” Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530 (2013), as such, courts should not default to the use of the two-tier method when determining if a class should be conditionally certified.

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Employers that are faced with collective actions under the Fair Labor Standards Act may be able to defeat Motions for Conditional Certification if they can demonstrate the individualized nature of named plaintiff’s claims. See Caballero v. Kelly Services, Inc., WL 12732863, at *7 (S.D. Tex. Oct. 5, 2015) (denying certification where alleged violations were “not the result of a systemic policy,” so “assessment of the[ ] issues necessitates an individual inquiry for each Plaintiff, thereby making a collective action inappropriate.”) Employers can prove that the potential plaintiffs’ claims are individualized and unfit for collective action by establishing the disparate nature of the putative class’ and its representatives job requirements and pay provisions. The need for individualized inquires contravenes the basic theory of judicial economy upon which the certification of collective actions is based. See id. at *1. Therefore, employers who highlight the individualized defenses and inquiries may prevent a collective proceeding. See Lugo v. Farmer’s Pride Inc., 737 F. Supp. 2d 291, 300–01 (E.D. Pa. 2010).

To determine whether 216(b) collective actions are appropriate, most courts utilize the two-tier method. See Hipp. at 1208. At the first “notice stage,” the district court makes a decision—usually based only on the pleadings and any affidavits which have been submitted— as to whether the putative class should be conditionally certified. See id. When assessing the pleadings and affidavits, courts in the Southern District of Florida satisfy themselves that “(1) there are similarly situated with regard to their job requirements and pay provisions; and (2) there is a desire among similarly situated individuals to opt-in to the class.” See Martinez at 1853.  Put another way, there is a two-part analysis to assessing the first tier, which determines whether conditional certification will be granted.

A defendant that successfully highlights the differences in pay and job requirements between the putative plaintiffs will probably defeat a Motion for Conditional Certification. Defendants should contrast on the job requirements and pay provisions of the named plaintiff with those that the named plaintiff seeks to represent. Thus, defendants should bring attention to inconsistencies in the pleadings and affidavits or declarations to establish that plaintiff differences in pay provisions and job requirements: defendants should highlight differences such as exempt status, job duties, and schedules, among other things. See Palacios v. Boehringer Ingelheim Pharm., Inc., WL 6794438, at *1 (S.D. Fla. Apr. 19, 2011) (denying first stage “notice” authorization because an individualized analysis was required to determine whether putative class members are exempt from the FLSA overtime provisions); Holt v. Rite Aid Corp., 333 F. Supp. 2d 1265, 1272 (M.D. Ala. 2004) (denying conditional certification because “similarly situated” inquiry must be analyzed in terms of the nature of the job duties performed by each putative plaintiff); Udo v. Lincare, Inc., WL 5354589, at *11 (M.D. Fla. Sept. 17, 2014) (denying notice authorization partly due to the variance in schedules among the potential opt-in plaintiffs.)

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Under Florida law, a corporation that acquires the assets of another corporation generally does not assume the liabilities of the predecessor corporation.  The successor corporation will acquire its predecessor’s liabilities only to the extent it agreed to acquire those liabilities in the asset purchase agreement.  Many states have similar laws regarding a successor corporation’s liability.  The analysis changes, however, when the predecessor’s liability stems from federal statutes like the federal Fair Labor Standards Act (“FLSA”).  In other words, a predecessor corporation’s failure to pay its employees minimum or overtime wages under the FLSA could result in liability to the successor corporation.

Some federal courts have held that a successor corporation could, as a matter of federal law, acquire the FLSA liabilities of its predecessor despite state law to the contrary.  Under federal law, courts consider the following factors, or slight variants thereof, to determine whether a successor corporation acquired its predecessor’s FLSA liabilities: (1) whether the successor corporation had notice of the predecessor’s liabilities; (2) whether there is continuity in operations and work force of the successor and processor; and (3) whether the predecessor has the ability to directly provide adequate relief.

In March 2013, the Seventh Circuit applied those factors, among others, in Teed v. Thomas & Betts Power Solutions, L.L.C., 711 F.3d 763 (7th Cir. 2013), and found the successor corporation liable for its predecessor’s FLSA violations.  The successor corporation in Teed purchased the assets of its predecessor through an auction.  The asset transfer agreement contained a specific condition that the transfer be “free and clear of all Liabilities” including any liabilities stemming from the predecessor’s pending FLSA litigation.  The federal appellate court noted that if “state law governed the issue of successor liability, [the successor corporation] would be off the hook.”  Teed, 711 F.3d at 765.  However, the court held that federal law, not state law, governed.  Consequently the court found that the successor corporation acquired its predecessor’s FLSA liabilities despite the exclusion in the the asset transfer agreement.  The court in Teed found that “[i]n the absence of successor liability, a violator of the [FLSA] could escape liability … by selling its assets without an assumption of liabilities by the buyer … and then dissolving.”  Teed, 711 F.3d at 766.

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The Fair Labor Standards Act (“FLSA”) not only requires that employers pay minimum and overtime wages, it also prohibits employers from retaliating against their employees for complaining about their wages.  The FLSA makes it unlawful for employers to “discharge or in any manner discriminate against any employee because such employee has filed a complaint or instituted … any proceeding under or related to [the FLSA].”  29 U.S.C. § 215(a)(3).  To establish a case for retaliation under the FLSA, an employee must prove three elements: (1) the employee engaged in protected activity under the FLSA, (2) the employee subsequently suffered adverse action by the employer, and (3) a causal connection existed between the protected activity and the adverse action.

A “protected activity” can be either formal or informal.  For example, if the employee formally files a complaint against the employer in court alleging unpaid wages, the employer cannot thereafter fire the employee for filing that complaint.  However, “informal” complaints could also lead to an FLSA retaliation claim.  For example, the employee may orally complain to the employer about unpaid overtime wages.  If the employer thereafter fires or takes other adverse action against the employee, the employer could be held liable for unlawfully retaliating against the employee.  The bottom line is: if the employee makes some form of complaint (either written or oral) that puts the employer on notice that the employee is asserting his or her rights under the FLSA, then the employee’s complaint will likely be considered “protected activity.”  The employee does not need to mention the FLSA by name.  However, the employee’s complaint also cannot be a general grievance; it must be sufficient in both content and context to put the employer on notice that the employee was asserting his or her rights under the FLSA.  A federal court in Florida recently found that the employees’ complaints that they were “improperly paid” were too vague to constitute “protected activity.”  Barquin v. Monty’s Sunset, L.L.C., 2013 U.S. Dist. LEXIS 144076, at *8-9 (S.D. Fla. Oct. 2, 2013).

An “adverse action” is any action taken by the employer that causes some injury or harm to the employee.  The most straight-forward example of “adverse action” is an employer terminating or firing the employee.  However, demotions or pay cuts could also constitute “adverse action.”  Other employment actions, such as job transfers or reassignments, will generally not be considered “adverse actions” on their own, but could rise to the level of “adverse action” under certain circumstances.  In general, if the employer’s actions would dissuade a “reasonable worker” from making or supporting a charge against the employer, then the employer’s actions would likely be considered “adverse.”

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A common dispute that arises in overtime and minimum wage litigation is whether an individual hired by the defendant is an independent contractor or an employee.  Many companies choose to hire independent contractors to perform work instead of hiring employees.  Because independent contractors are not considered “employees” under the Fair Labor Standard Act (“FLSA”), the minimum wage and overtime wage provisions of the FLSA do not apply to independent contractors.  Hiring independent contractors might also be beneficial to companies for tax purposes.  However, as many companies have learned through litigation, labeling a worker an “independent contractor” will not automatically preclude that individual from being considered an “employee” under the FLSA.

Courts look to the “economic realities” of the relationship between the company and the individual the company hired to determine whether the individual is an “employee” or an “independent contractor.”  To determine whether the individual is an employee as a matter of economic reality, courts consider the following 6 factors: (1) the degree of control exercised by the company on the individual; (2) the individual’s opportunity for profit and loss based on managerial skills; (3) the individual’s investment in equipment or personnel; (4) the skill required to perform the work; (5) the duration of the relationship between the company and the individual; and (6) whether the services performed by the individual are integral to the company’s business.

As the 6 factors suggest, the determination of whether an individual is an “independent contractor” or “employee” depends on the specific facts of each case.  Adding more complexity to the analysis, courts do not mechanically apply the six factors.  The weight that courts attribute to each factor ultimately depends on the court’s analysis and on the facts of each case.  A good example of the distinction between “employee” and “independent contractor” is detailed in recent cases regarding adult entertainers.  For example, in Stevenson v. Great Am. Dream, Inc., 2013 U.S. Dist. LEXIS 181551 (N.D. Ga. Dec. 31, 2013), a class of adult entertainers sued the nightclub that hired them (the “Nightclub”) for minimum and overtime wages.  The court analyzed the facts in the case in relation to the six factors detailed above and found that the entertainers were “employees” because 5 of the 6 factors of the economic reality test suggested “employee” status.

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When an employee brings a claim for unpaid overtime under the Fair Labor Standards Act (“FLSA”), the employee must prove that he or she worked overtime without proper compensation.  If the employer kept accurate records of the employee’s work hours, the employee could easily prove his or her case by referring to those records.  For that reason, the FLSA requires that employers keep proper and accurate records of the hours its employees work.  However, employers sometimes fail to keep accurate time records.  As the Supreme Court has held, “[t]he solution … is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work.  Such a result would place a premium on an employer’s failure to keep proper records.”   Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946).  Instead, when the employer fails to maintain accurate records, the employee could prove its case by (1) proving that he or she has in fact performed work without proper compensation and (2) producing sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.

In Brown v. ScriptPro, LLC, 700 F.3d 1222, 1230 (10th Cir. 2012), the employee, Mr. Brown, claimed that he worked overtime hours from home.  Neither ScriptPro, LLC, (“ScriptPro”) the employer, nor Mr. Brown kept time records for the hours that Mr. Brown allegedly worked from home.  Through his and his wife’s testimony, Mr. Brown provided uncontroverted evidence that he worked overtime at home.  However, Mr. Brown also had to prove the amount and extent of the overtime worked.  Mr. Brown argued that because ScriptPro violated its statutory duty to maintain proper and accurate time records, Mr. Brown’s burden prove the amount and extent of his uncompensated overtime work should be relaxed.  The court disagreed.

As the court noted, “courts only relax the plaintiff’s burden to show the amount of overtime worked where the employer fails to keep accurate records.”  Brown, 700 F.3d at 1230.  The court held that ScriptPro did not fail to maintain proper and accurate time records because ScriptPro had implemented a time-keeping system that employees were required to use to record their hours worked, and becuase ScriptPro’s time-keeping system was accessible to employees from their respective homes.  “Mr. Brown easily could have entered his hours; in fact, he was required to do so. … There was no failure by ScriptPro to keep accurate records, but there was a failure by Mr. Brown to comply with ScriptPro’s timekeeping system.”  Brown v. Scriptpro, LLC, 700 F.3d 1222, 1230 (10th Cir. 2012).  Under those circumstances, the court found that ScriptPro did not violate the FLSA.

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