My firm is co-counsel with the Nichols Kaster law firm in a case against Kellogg Co. seeking overtime compensation under the Fair Labor Standards Act. In this case, we have argued that our clients should get paid for the time it takes to don and doff company mandated uniforms and protective gear, as well as the time spent walking from the changing area to the time clocks.

After losing on the donning and doffing issue, as well as the walking time issue, at the trial court, we appealed the case to the 6th Circuit Court of Appeals.

Last week, the 6th Circuit issued its decision affirming the trial court’s decision that our clients were not entitled to be paid for the time it takes to don and doff company mandated uniforms and protective gear. Franklin v. Kellogg Co. – 6th Cir. Opinion

Importantly, however, the 6th Circuit reversed the trial court on the walking time issue and remanded the case for further proceedings on this issue. Thus, we may still be able to obtain some relief for our clients.

For a number of years, our law firm has had the pleasure of representing the Memphis Fire Fighters Association, i.e., International Association of Fire Fighters Local 1784. Click. It’s an honor to represent men and women who risk their lives for all of us on a daily basis.

In conjunction with the Washington D.C. based law firm of Woodley & McGillivary, click, who will be serving as lead counsel, we have filed suit against the City of Memphis seeking compensation under the Fair Labor Standards Act (FLSA) for unpaid overtime.

The case stems from the City’s requirement that newly hired fire fighters become paramedic certified within 3 years of being hired. The mandatory training that is required is quite extensive and involves a thousand plus hours to obtain certification. Unfortunately, the City of Memphis is not compensating these fire fighters for the time spent on mandatory training, which we believe it is a violation of the FLSA.

On July 1, 2010, we (Donati Law Firm and the Nichols Kaster firm) filed a lawsuit in the U.S. District Court for the District of Minnesota against Multiband Corporation under the Fair Labor Standards Act seeking unpaid overtime compensation on behalf of satellite tv installers, who have been treated as independent contractors by Multiband.

Click on link to access a copy of the Complaint

The case is getting some press. Click here and here.

If you believe you have been improperly classified by a company as an “independent contractor”, and thus denied overtime compensation in work weeks in which you worked in excess of forty hours, please contact my law firm at 901-278-1004 for a free consultation.

A recent case from the Eastern District of Tennessee discusses the enforcement of settlement agreements in a FLSA case. See Solis v. Magana, 2010 WL 1257859 (E.D. Tenn. Mar. 26, 2010).

In this case, the defendant agreed to settle a FLSA case brought by the U.S. Department of Labor. The amount of the settlement was agreed upon, as well as a payment schedule. Some months later, before the Court had approved the final settlement, the defendant sought to modify the payment schedule. The DOL refused and sought to enforce the parties’ agreement. The defendant argued that not all material terms had been agreed on by the parties, but the court rejected that argument.

As an initial matter, the court agreed with the defendant that before enforcing a settlement agreement, a court must conclude that the parties have agreed on all material terms. The court found, however, that all material terms had indeed been agreed upon.

The defendant’s change in financial circumstances, which caused the defendant to seek modification to the settlement agreement’s payment schedule, was not a sufficient basis for the court to find that an agreement had not bee reached in the first instance. The court noted that an employer’s economic hardship is not a valid ground for opposing the entry of an order relating to FLSA violations.

A few weeks we filed suit on behalf of a group of plaintiffs in the Middle District of Tennessee seeking unpaid overtime compensation. See my post dated 11/24/09. The case is Bowman et al. v. New Vision Telecommunications, Inc. et al., 3:09-cv-01115.

The day after the defendants learned of the lawsuit they suspended the plaintiffs without pay for an indefinite period. The reasons offered by the defendants for the suspensions seemed pretextual so we immediately amended the complaint and sued the defendants for unlawful retaliation under 29 U.S.C. 215(a)(3). We also sought a temporary restraining order asking for our clients to be reinstated pending a preliminary injunction hearing. A TRO was entered by the court and a preliminary injunction hearing was set. The preliminary injunction hearing took place on 12/3 and 12/10.

Late today we received a decision from the court granting our motion for preliminary injunction. The defendants were ordered to return the plaintiffs to work with the same pay and benefits. Further, the defendants were ordered not to retaliate against the plaintiffs or others similarly situated.

It was a great win for our clients needless to say. A copy of the memorandum opinion and order granting preliminary injunction can be accessed by clicking on the links below.

Order Granting Preliminary Injunction

Memorandum Opinion

On Friday, November 20, 2009, we (Billy Ryan and Bryce Ashby of Donati Law Firm, LLP and Paul Lukas and Rachhana Srey of Nichols Kaster, PLLP) filed another lawsuit alleging failure to pay overtime as required under the Fair Labor Standards Act (”FLSA”).

The case is styled Bowman et al. v. New Vision Telecommunications, Inc. et al.; M.D. Tenn. Case No. 3:09-cv-01115. We filed the case in U.S. District Court in Nashville, Tennessee. Click here. Our local counsel is Doug Janney.

This is yet another case brought against a cable installation contracting company for not paying overtime compensation to its installers/technicians. The defendant company, New Vision Telecommunications (”NVT”), has operations in Nashville, Tennessee and Atlanta, Georgia and does installation and service work for Comcast.

Prior to January 2009, we allege that NVT intentionally misclassified its installers/technicians as “independent contractors” in an effort to avoid paying the installers/technicians overtime compensation under the FLSA. We allege that the installers/technicians routinely worked more than 40 hours per week so the financial savings in classifying the installers/technicians is believed to be significant.

Since January 2009, we allege that the installers/technicians have been properly classified as “employees”, yet for some unexplained reason NVT has continued to fail to pay overtime compensation to the installers/technicians.

Hopefully, this lawsuit will recover all or some of the overtime compensation that we contend should have been paid to NVT’s installers/technicians over the last 3 years. If you need additional information about the lawsuit or have questions about the lawsuit, please give me a call at 901-278-1004 or 800-521-0578.

On behalf of our client Alice Franklin, we recently filed our opening appeal brief in the case of Alice Franklin v. Kellogg Co. opening-brief.pdf

My co-counsel Rachhana Srey with Nichols Kaster (click here) did a great job in taking the lead on writing the brief, which is always an arduous task. [Although being able to file the brief electronically is really nice as compared to the "old days" when you had to file paper copies and assemble the joint appendix if you were the appellant].

The case is brought under the Fair Labor Standards Act (29 U.S.C. 201 et seq.) and seeks compensation for time spent by Ms. Franklin and others similarly situated for changing in and out of Kellogg Co. required sanitary and protective gear. We are also seeking compensation for walking time after donning the sanitary and protective gear.

A number of interesting issues are presented in the appeal. First, the 6th Circuit is asked to address the affirmative defense raised by Kellogg Co. under 29 U.S.C. 203(o). This may well be the first time that the 6th Circuit has addressed this affirmative defense. We next ask the 6th Circuit to address the affirmative defense raised by Kellogg Co. under 29 U.S.C. 259(a). This defense is premised on reliance on opinion letters from the U.S. Dept. of Labor.

I recently filed a case under the Fair Labor Standards Act (FLSA) alleging that my client was not properly compensated for all hours that he worked because he was not paid for travel time from his company shop, where he was required to report to pick up materials and tools, to the job site.

Under the Portal-to Portal Act, employers are not required to compensate employees for time spent commuting between home and their workplace. See 29 U.S.C. 254; see also 29 C.F.R. 785.35. Importantly, however, a separate FLSA regulation provides that “[t]ime spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked.” 29 C.F.R. 785.38.

Specific to my client’s case, 29 C.F.R. 785.38 also provides that “[w]here an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked regardless of contract, custom, or practice.” Id.. See also Bleichner v. Spies Painting & Decorating, Inc., 2009 WL 281145 (W.D.Wis. Feb. 3, 2009)(holding plaintiff was entitled to be compensated for time spent traveling from company shop to job site); Ladegaard v. Hard Rock Concrete Cutters, Inc., 2004 WL 1882449 (N.D.Ill. Aug. 18, 2004)(same); Chao v. Akron Insulation & Supply, Inc., 2005 WL 1075067 (N.D.Ohio May 05, 2005)(holding shop time and travel time was compensable because these activities were indispensable parts of the employees’ principal activities).

Therefore, it is clear that under the FLSA travel time is compensable if it is travel that is all in a day’s work.

The 6th Circuit just issued an important decision concerning a FLSA case. See O’Brien v. Ed Donnelly Enterprises, Inc., 2009 WL 2382437 (6th Cir. Aug. 5, 2009). 09a0273p-06.pdf. Here are some key highlights:

First, court held that the district court properly dismissed individual plaintiffs’ FLSA claims where the defendant had made the plaintiffs a Rule 68 offer of judgment that provided full relief to the plaintiffs. Specifically, the court held that an offer of judgment that satisfies a plaintiff’s entire demand moots the case. Significantly, the court noted that its decision did not implicate a FLSA collective action case. The court cited to Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 922 (5th Cir.2008) for the proposition that a Rule 68 offer of judgment cannot moot a lead plaintiff’s FLSA claim when the lead plaintiff timely moves for collective certification, because the motion relates back to the lead plaintiff’s filing of the complaint.

Second, with respect to an award of attorney’s fees in a FLSA case, the court held that the FLSA’s attorney’s fee provision found at 29 U.S.C. 216(b) did not prohibit a prevailing plaintiff from recovering attorney’s fees for worked performed in a previously filed case so long as the work performed beneficially attributed to success in the subsequently filed case.

Third, for the first time, the 6th Circuit addressed a district court’s decertification of a collective action. As an initial matter, the court held that it would review a district court’s certification rulings in FLSA collective action cases under an abuse of discretion standard. Next, the court addressed the meaning of the phrase “similarly situated” found at 29 U.S.C. 216(b) in connection with a decertification motion. The court also discussed various rules and principles that should guide district courts in determining whether the opt-in plaintiffs in a collective action are “similarly situated” to the named plaintiffs for purposes of trial. Specifically, the court endorsed a district court’s consideration of a variety of factors, including the: the factual and employment settings of the plaintiffs; the different defenses to which the plaintiffs may be subject on an individual basis; and the degree of fairness and procedural impact of certifying the action as a collective action. Importantly, the court stated that named plaintiffs are not required to demonstrate the existence of “unified policy” violation in order to establish that the opt-in plaintiffs are similarly situated to the named plaintiffs. Applying these factors to the facts of the case, the court held that the plaintiffs were similarly situated because their claims were unified by common theories of defendants’ statutory violations, even if the proofs of these theories are inevitably individualized and distinct.

Additionally, the court advised that district courts should examine whether partial decertification is possible in FLSA collective actions. According to the court, the option of partial certification is important, because it counters a defendant’s argument that a collective action must be totally decertified if some members are not similarly situated to the others. Thus, plaintiffs who are not similarly situated or plaintiffs who did not allege suffering under the alleged unlawful practice could be dismissed while a partial class proceeded forward as a collective action.

Finally, with respect to damages in a FLSA case, the court cited to Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946) for the principle that when an employer keeps inaccurate or inadequate records, a FLSA plaintiff does not need to prove every minute of uncompensated work. Rather, a plaintiff can estimate their damages, thus shifting the burden to the employer. If the employer cannot negate the plaintiff’s estimate, then the court may award damages to the employee, even though the result be only approximate.

In a FLSA case decided last week, Solis v. Yang, 2009 WL 2017906 (6th Cir. July 10, 2009), the 6th Circuit rejected a defendant employer’s argument that it should not have to pay liquidated damages under the Fair Labor Standards Act. The defendant employer operated a Chinese restaurant/buffet.

Under 29 U.S.C. § 216(b) of the FLSA, any employer who violates the minimum wage law or overtime law shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation PLUS an additional equal amount as liquidated damages.

However, liquidated damages may not be awarded if the employer shows that “the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act.” 29 U.S.C. § 260.

In the Yang case, the defendant employer claimed ignorance of the law, adherence to Chinese cultural practices, and language difficulties as bases for invoking the good-faith standard.

But the court rejected this argument holding that to demonstrate good faith requires more than the absence of intent or knowledge. And the court also held that the presence of a language barrier is not relevant as to whether there were objectively reasonable grounds for the employer to believe itself to be in compliance with the FLSA.

Thus, the 6th Circuit concluded that a good heart but an empty head does not produce a defense against liquidated damages under the FLSA.