Washington State Meal and Break Laws

WAC 296-126-092   Meal periods -- Rest periods.  

(1) Employees shall be allowed a meal period of at least thirty minutes which commences no less than two hours nor more than five hours from the beginning of the shift. Meal periods shall be on the employer's time when the employee is required by the employer to remain on duty on the premises or at a prescribed work site in the interest of the employer.

     (2) No employee shall be required to work more than five consecutive hours without a meal period.

     (3) Employees working three or more hours longer than a normal work day shall be allowed at least one thirty-minute meal period prior to or during the overtime period.

     (4) Employees shall be allowed a rest period of not less than ten minutes, on the employer's time, for each four hours of working time. Rest periods shall be scheduled as near as possible to the midpoint of the work period. No employee shall be required to work more than three hours without a rest period.

     (5) Where the nature of the work allows employees to take intermittent rest periods equivalent to ten minutes for each 4 hours worked, scheduled rest periods are not required.

[Order 76-15, § 296-126-092, filed 5/17/76.]

Wage and hour and Daubert

Economist's testimony in FLSA case.

14. Johnson vs. Big Lots Stores, Inc.
Date of Decision: 5/7/2008
Jurisdiction: Federal
Docket Numbers: CIVIL ACTION NO: 04-3201c/w05-6627 SECTION: R(1)
Court: Louisiana, Eastern District
Area of Law: Labor & Employment
Judge(s): SARAH S. VANCE , UNITED STATES DISTRICT JUDGE.
Gatekeeping Issue: Federal Rules;Rule 702, Federal Rules;Rule 703, Federal Rules;Rule 803, Federal Cases;Daubert

Attack II: Your expert is not an expert

Is the bar too high for survey evidence in wage and hour cases?

The second approach that the defendant's in Marlo v. UPS employed was an attack on the plaintiff's expert's qualifications as a survey expert. Although the expert had done a lot of surveys, the defendant's were able to convince the court that she was not quite expert enough.

Specifically,

According to the defendant's, Rules 702 and Daubert, the Reference Manual
details specific expertise requirements for survey experts and provides that experts
who design, conduct, or analyze a survey be appropriately skilled with the
following qualifications:

• Experts prepared to design, conduct, and analyze a survey generally
should have graduate training in psychology (especially social,
cognitive, or consumer psychology), sociology, marketing,
communication sciences, statistics, or a related discipline.

• That training should include courses in survey research methods,
sampling, measurement, interviewing, and statistics.

• In all cases, the expert must demonstrate an understanding of survey
methodology, including sampling, instrument design (questionnaire
and interview construction), and statistical analysis.

• Publication in peer-reviewed journals, authored books, membership in
professional organizations, faculty appointments, consulting
experience, research grants, and membership on scientific advisory
panels for government agencies or private foundations are indications
of a professional's area and level of expertise.

• In addition, if the survey involves highly technical subject matter (e.g.,
developmentally disabled adults with limited cognitive skills), the
survey expert also should be able to demonstrate sufficient familiarity
with the topic or population (or assistance from an individual on the
research team with suitable expertise) to design a survey instrument
that will communicate clearly with relevant respondents.

In short, the defense said the expert met none of the above.

Attack I: - more details..

Is the bar for wage and hour survey evidence too high?

As mentioned in the last posted the defendant's in Marlo v. UPS attacked the plaintiff's wage and hour survey on several levels. The following discusses the details of the attack.

(see yesterday for discussion on 1. sample not representative)

2. The survey questions were not framed in a clear, precise,
and non-leading manner


The questions to be asked of interviewees were not framed in a clear,
precise, and non-leading manner. First, many questions in the Telephone Survey
use biased words and phrasing that were designed to lead to a specific or desired
response.

Second, the [Federal] Reference Manual explains that the "yes/no/not applicable"
response format results in inaccurate data because it encourages "acquiescence"
(the tendency of respondents in some surveys to agree or disagree, known as "yeahsaying"
and "nay-saying") and "social desirability" (the desire to present oneself in
a favorable light). Reference Manual at 375-377

Third, the Telephone Survey elicited responses to all questions, even
though some questions clearly did not apply to all respondents because they did not
pertain to all three of the relevant FTS positions.

....The fact that most of the respondents answered every question regardless of whether it applied to them confirms that the questions encouraged acquiescence and guessing.

Attack I: Inadmissible Hearsay - a detailed look

Is the bar for wage and hour survey evidence too high?

As mentioned in the last posted the defendant's in Marlo v. UPS attacked the plaintiff's wage and hour survey on several levels. The following discusses the details of the attack.

1. A representative sample was not selected.

First, no precautions were
taken to ensure that only qualified respondents were included in the Telephone
Survey....the Telephone Survey did not ask any questions to ensure that
respondents were qualified to participate in the survey, such as whether they were
currently employed at UPS in one ofthe FTS job positions, or if they ever held one
of the relevant FTS job positions at UPS.


Second, there is no evidence that the respondents who participated in
the Telephone Survey are representative of all class members. Of the 614
"qualified respondents" provided by Plaintiffs counsel, only 160 interviews were
completed. The plaintiff's expert does not provide information about relevant characteristics of the 160 respondents, such as the region or district where they worked, whether they worked as a full-time on-road, hub, or preload supervisor, or the length oftheir employment. fd. Nor does it compare the characteristics of the respondents to the population the Telephone Survey was
intended to represent.

The plaintiff's expert confirmed at deposition that she did not know whether
the sampling frame was representative of the universe, whether the sample was
random from any other larger universe of people who were being surveyed, or
whether the sample was stratified as to any larger list, and that she did nothing at all
to evaluate the representative nature of the sample.

Attack I: The survey is inadmissible hearsay

Is the bar too high for survey evidence in wage and hour cases?

The defendant's first attack was the survey was inadmissible hearsay of the type not reasonalbly relied on by experts in the field.
According to the defendants:

The results of the Telephone Survey are out-of-court statements by
respondents purportedly discussing their knowledge and application of UPS's
methods and procedures. Plaintiff seeks to use the results ofthe Telephone Survey
to prove the truth of those statements, i.e., that the respondents know and apply
UPS' methods and procedures. This is classic hearsay. FED. R. EVID. 801(c)

Some courts have allowed the admission of survey evidence under the
residual or "catch all" exception to the hearsay rule upon a finding that the survey is
"material; . .. more probative on the issue than any other evidence; and ... has
'circumstantial guarantees of trustworthiness. "

A survey is trustworthy if it "is conducted in accordance with
generally accepted survey principles, and if the results are used in a statistically
correct way, since proper survey and statistical methods are intended to assure a
poll's reliability."

The defendant's attacked the plaintiff's wage and hour survey on several levels. Using the defendant's definition of 'trustworthy' means that a trustworthy survey is one where:

(1) the "universe" was properly defined;
(2) a representative sample of that universe was selected;
(3) the questions to be asked of interviewees were framed in a clear, precise, and nonleading
manner;
(4) sound interview procedures were followed by competent
interviewers who had no knowledge ofthe litigation or the purpose for which the
survey was conducted;
(5) the data gathered was accurately reported;
(6) the data was analyzed in accordance with accepted statistical principles; and
(7) the objectivity of the entire process was ensured.

According to the defendant's motion, the plaintiff's expert's survey did not meet any of these requirements for a sound study.

Is the bar too high for survey evidence in wage and hour cases?

So, now that the backdrop for the survey in the Marlo v. UPS case has been laid, what then is the problem? The company that performed the survey had performed numerous surveys...that was their job. In addition, the witness, at least one of them, was the president of the survey company. The other witness was a Ph.D. Industrial Organization professor.

Here is a summary of the defense's motion to exclude the survey. (More discussion in follow-up posts)


However, any opinion or testimony about the Telephone
Survey must be excluded for two separate and independent reasons. First, any such
opinion or testimony is inadmissible because the results of the Telephone Survey
constitute hearsay of a type that is not reasonably relied upon by experts in her
particular field. Second, any such opinion or testimony is inadmissible under
Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), because

(I) the expert does not qualify as an "expert";
(2) the expert's opinion will not assist the trier offact;
and (3) the expert's opinion is not (a) "the
product of reliable principles and methods"; (b) based upon sufficient facts or data;
and (c) based upon a reliable application of principles and methods to the facts of
this case. Thus, any opinion or testimony by the expert about the fact, contents, results,
or purported scientific validity ofthe Telephone Survey must be excluded at trial.

Survey adminstration

Is the bar too high for survey evidence in wage and hour cases?

Here are the details of how the survey was conducted:

SAMPLE

A list of 614 cases was provided. This list was checked for duplicate phone numbers and valid area codes and 64 cases were thrown out. Of the 550 remaining numbers, 166 were unusable, leaving 384 viable phone numbers. The remaining 384 cases we dialed up to 5 attempts in an effort to complete the questionnaire with as many as possible.

INTERVIEWING·
Interviewing took place between the dates of November 18th and November 24",2004. Calling times were scheduled from 6:00-9:00 PST weekdays, 9:00 am-4:00 pm PST on Saturday and 2:00-8:00 PST Sunday.

Interviewing took place at various times during these calling windows. Daytime dialing also occurred on the 220d and 23'd of November.

Interviewing was completed following sound, standard marketing research call center practices Including reading verbatim and administering the interview in a non-biased fashion. 20% of completed interviewers were silently monitored (10% is industry standard). 13% of respondents were called back to confirm qualification and study participation (10% is industry standard).

Supervision ratio was 1 hour for every 3.5 interviewing hours. Industry average is approximately 1:8.
A total of 7 Intervij1wers were briefed and dialed on this study at some time during its 7days in field ranging from 1to 5 during any given shift.

QUESTIONAIRE·

Aquestionnaire wjth 42 yes/no/na questions was provided to ORI, atrue and correct copy of which Is attached hereto ap Exhibit 1. This questionnaire was programmed Into CATI (computer assisted telephone interviewing) software commonly used within the industry to administer telephone interviews. In addition to providing the script and capturing data the software also regulates the phone numbers to be called in reference to callbacks times, resolved vs. non resolved numbers, etc.

Part I : Background on survey in wage and hour case

Is the bar too high for survey evidence in wage and hour cases? Part I


In November 2004, Plaintiff Michael Marlo's counsel of record, John
Furutani, retained a "data collection execution and management" to conduct a telephone survey ("Telephone Survey") of current and former UPS employees.

The survey asked questions related to procedures that the UPS employees followed. The survey also asked about the authority that the UPS employees had to fire, change schedules, etc. of other UPS employees.

Plaintiff intends to offer the expert testimony of the president of the survey firm regarding the fact, content, results, or purported scientific validity of the Telephone Survey.


The survey:

Application of knowledge and training!manager's desires
1) Do you apply your knowledge ofUPS' prescribed procedures when
determining which procedure to follow in a given situation?
2) Are the decisions you make on a daily basis as a UPS full-time supervisor
based on UPS' rules, procedures or methods that you have been trained on?
3) Are the decisions which you routinely make as a UPS full-time supervisor
based on the experience you have gained working for UPS?
4) Have you been traioed in UPS' methods and procedures?
5) Are the decisions which you routinely make as a UPS full-time supervisor
based on the training you have received while working for UPS?
6) Are the decisions of consequence you make in the operation dictated by the
training you have received on the proper procedures and methods?
Training on the methods
7) Do you have the authority to modify training methods if you feel you have a
better way of doing something?
8) Do you train employees on UPS' methods?
9) Do you ever disregard the methods while training?
10) Do you train outside of the prescribed methods?
11) Do you train outside of the prescribed procedures?

12) Do you have the authority to train an employee in your own methods if you
feel they are better than UPS'?
Changing and adherence to goals set by UPS
13) Do you have the authority to unilaterally change the goals set by UPS?
14) Do you have the authority to unilaterally change the goals given to you by
Industrial Engineering (IE)?
15) As a full-time supervisor, do you have the authority to disregard "Packages
Per Hour" (PPH) goals?
16) As a full-time supervisor, do you have the authority to disregard "Stops-peron-
mad-hour" (SPORR) goals?
Assigning staff/vacation/salary decisions
17) If staffing is low going into the following week, do you have the authority to
unilaterally cancel the planned vacations of your employees for the following
week?
18) If one ofyour drivers has an accident, do you have the authority to decide that
the driver does not need a ride along the next day?
19) If a driver has a minor accident, do you have the authority to instruct the
driver to ignore it and not report it?
20) Do you determine the hourly wages for the hourly employees assigned to you?
21) Do you have the authority to supervise those employees who do not work
directly under you?
22) Does the Collective Bargaining Agreement dictate how many hourly
employees can be off on vacation at any given time?
23) Does the Collective Bargaining Agreement dictate which hourly employees
get to pick vacation first?
24) Are the decisions which you make as a UPS full-time supervisor limited in
any way by the Collective Bargaining Agreement for hourly employees?
25) Do you have the authority to ignore the Collective Bargaining Agreement?
26) As a full-time hub, preload or on-road supervisor, do you have the authority to
hire more employees to your rosters without Industrial Engineering (IE) or
Human Resource (RR) approval? '.
27) As a full-time hub, preload or on-road supervisor, do you have the authority to
hire a new employee on behalf ofUPS?
Disciplining staff
28) If you see an employee violating a method, such as walking on a moving belt,
do you have the authority to iguore the behavior and allow it to continue?
29) Do other supervisors have the authority to discipline your hourly employees?
30) Do you have the authority, as a full time supervisor, to discipline the hourly
employees of another supervisor?
Working as directed
31) Are you directed by your manager or division manager to do traininglon-jobsupervision?
32) Are you required to follow UPS' methods?
33) Are you required to make sure that UPS' hourly employees are following
UPS' methods?
34) Are you required to follow UPS' methods and procedures in achieving the
goals dictated by corporate?
35) Are you required to work as directed by your manager or division manager?
36) Do you have the authority to disregard any safety method prescribed by UPS?
37) Are you required to do daily audits?
38) Do you use a checklist to perform these daily audits?
39) When you are doing a checklist audit, do you have the authority to disregard
any methods or procedures?
40) Are you required to document audits on UPS checklist or audit forms?
41) Does your manager have the final say for operational issues?
42) Does your division manager have the ultimate decision-making authority for
the facility?

Is the bar too high for survey evidence in wage and hour cases?

In 2004 California Federal Court case, Marlo v. UPS, the court excluded the plaintiff's survey evidence in a misclassification case. The plaintiff's hired a survey firm to ask UPS employees about the duties that they performed. Based on the survey, the plaintiffs expert opined that the UPS workers were misclassified as exempt from overtime payments.

The defendant's motion questioned the reliability of the survey and the qualifications of the plaintiff's expert.

Over the next few post, we will be discussing the ins and outs of this case.

Statistical evidence in wage and hour cases after Brinker

Will statistical and survey evidence become less important after Brinker?

(from Akin Gump newsletter)

The California Court of Appeal for the Fourth Appellate District on July 22, 2008, in Brinker Restaurant Corp. v. Superior Court of San Diego County, issued a unanimous, published opinion that defines the elements of meal period, rest period and off-the-clock claims under California law. The court concluded that an employer must only provide meal and rest breaks to employees, not ensure that employees take them, as lawyers for plaintiffs have argued in many cases. The court held that why an employee did not take a particular break was an individual question that could not be resolved on a class basis. The court thus reversed class certification.

In terms of statistical evidence...the Court of Appeal rejected an argument that plaintiffs raised with respect to all of their claims: that “expert statistical and survey evidence” rendered their claims amenable to class treatment. The Court of Appeal explained that such evidence, while sometimes useful in the class certification context, in this case could not show why meal and rest breaks were not taken, whythey were interrupted or why employees worked off the clock. Only individual inquiries could resolve those questions, making class certification of plaintiffs’ claims inappropriate. 

Wage and hour survey discussion Part I

From the previous post (9/2/2008)According to the defense's Daubert motion, the wage and hour survey in the Big Lots case suffered from a number of flaws.

As mentioned, the court disagreed and denied the defense's motion.

List of criticisms:

* The survey responses conflicted with opt-in actual deposition testimony.

* Survey had “non-response bias and coverage error.”

* Another flaw with the survey is that it was not pretested, with the
exception of internally and with Plaintiffs’ counsel

*Recency bias, or the tendency to overweight recent experience in our perception of general experience.

* “Coverage error occurs when members of the survey population do not have an equal probability of being chosen to be part ofthe sample studied.” (Survey did not include non-opt-ins)

* Numerous survey responses that indicated confusion or dissatisfaction with survey questions. Of the 553 responses he reviewed, over 55 percent (306)contained missing or incomplete answers...

*Plaintiff expert did not provide a follow-up to questions

* Survey used the FLSA test qualifications. Focused on the long test (for exemption classification) when the short test questions were arguably the correct ones.

* Questions failed to seeks information regarding the respondent’s employment
history with BigLots. It fails to draw any distinction between time employed at Big Lots
that is at issue in thisaction and time that falls outside the statute of limitations.

*Use of the word “regularly” in the survey question resulted in a great
deal of confusion,destroying any confidence that the survey responses on the relevant
issues (hiring and firing) arereliable in terms of what is required by the regulations.

*“Regularly” is not defined in the survey instrument, leaving the respondents to formulate their own interpretations

* Term refers to average work week but does not define them.

* Some questions do not add correctly. Either their totals failed
to equal 100 percent or, as in the case of numerous respondents they listed very high percentages (between 75% to 100% foreach of the activities) evidencing total confusion about the question.

*Wrong defintion of work week. The employer defined a full time work week as 32 hours and not 40 as in the survey

* Disagreed with damage method.

Plaintiff expert calculated that, based upon the survey responses, the respondents worked anaverage of 59.3 hours per week. He further claimed, based upon a 95 percent confidenceinterval, that this means that 95 percent of all opt-ins worked 58.5 to 60 hours a week. He then concludes that all of the opt-ins should be awarded damages simplyby determining from payroll records how many weeks each Assistant Store Manager had worked, by applying theappropriate overtime factor to the base hourly rate and then multiplying the resulting overtimerate by the number of hours worked in excess of forty per week.

Sponsered Link: Looking for a survey and damages expert in a wage and hour case? Go to http://www.employstats.com/

Wage and hour survey is admitted in FLSA case

John Johnson and Robert Burden v. Big Lots Stores, Inc., United States
District Court, Eastern District of Louisiana

In this case, the plaintiff's allege that the assistant store managers
are missclassifed as exempt from OT. According the plaintiff's report they
assistant managers worked on average 58 hours a week but were paid for
only 40 hours.

Plaintif's hired an ecoonomist to perform a survey of the opt-in members
of the class. The plaintiff's damage analysis was based on the survey.

Summary:

In a nutshell the defense argues that the plaintiff's survey is flawed. Argue to the brief, the flaws are as follow. First, the respondents are interested in the outcome of the litigation for
which the survey was conducted, and were told that the survey was to be used to help with their case, rendering the results unreliable. Second, additional methodological defects infected the survey with bias, rendering the analysis based upon it unreliable. Finally, the plaintiff's expert asked the wrong questions, resulting in misleading and unreliable answers.

The court disagreed and denied the defense's Daubert motion. In the coming post, we will discuss this case in more detail.

Sponsered Link: Looking for a survey and damages expert in a wage and hour case? Go to www.employstats.com

Fluctuating work week method is endorsed by 10th circuit

The U.S. Court of Appeals for the 10th Circuit endorsed the fluctuating workweek method of calculating back pay awards for misclassified salaried employees in lawsuits arising under the Fair Labor Standards Act. In Clements v. Serco, Inc., 2008 U.S. App. LEXIS 13806 (10th Cir. July 1, 2008).

The 10th Circuit held that the district court properly used the fluctuating workweek method to calculate a back pay award for unpaid overtime, rather than the alternative time-and-a-half formula...

According to FLSA, 29 C.F.R. § 778.114(a):

When the number of hours worked in a week moves around:

"the regular rate of the employee will vary from week to week and is determined by dividing the number of hours worked in the workweek into the amount of the salary to obtain the applicable rate for the week."

For instance consider a person earning $1,500 a week who was was misclassified as exempt from recieving overtime. Assume that the court has determined that the person generally works 50 hours a week. Since it has been determined that they are misclassified, they are entitled to 10 hours of OT.


Under the fluctuating workweek calculation, the value of the OT that the employee is entitled to is:

Regular rate = 1,500/50 = $30.00

so the OT owed would be = 0.5* $10hours * $30.00 = $150.00

In contrast, under the usual FLSA calculation, the person would recieve a rate of one-and-one-half times the regular rate. Under the usual calculation it would be:

Regular rate = 1,500/50 = $30.00

so the OT owed would be = 1.5*$10hours*$30.00=$450.00

The underlying idea is that when the fluctuating workweek applies, employees receive overtime compensation at a rate of one-half their regular rate for the week – – "because such hours have already been compensated at the straight time regular rate, under the salary arrangement." Therefore, applying the fluctuating workweek approach typically reduces the amount of overtime compensation to which an employee is entitled.

At the end of the day, the value of the unpaid overtime for the misclassified worker will be lower.

Nuts and bolts of a wage and hour class settlement

Texas Lawyer Newspaper reports that the plaintiffs in a donning and doffing case (Vogt v. Texas Instruments Inc., No. 3:05-cv-02244 ) recovered $355,000 in allegedly unpaid overtime.

The newspaper's report is somewhat true....

According to the COMPROMISE AND SETTLEMENT AGREEMENT AND RELEASE filed with the court, the 71 plaintiffs actually recovered about $65,000, or about $650 each after taxes, in back wages.

The plaintiff's attorneys recovered $290,000 in attorney and court fees.


FYI, in the case the lead plaintiff Wilford Vogt claimed that Texas Instruments failed to pay him and other similarly situated employees overtime wages from November 2002 through 2005, alleging that they were not compensated for time spent changing in — and out of — protective gear. This practice allegedly took 32 to 42 minutes each shift and was necessary before entering — and after leaving — designated “clean” manufacturing rooms.

The plaintiffs said that they were only compensated for 11.5 hours of work on 12-hour shifts. Texas Instruments contended that it complies with the law, noting its generous pay policies, which reportedly exceed legal requirements.
TI.pdf

Wage and hour count

From http://entertainingemploymentlaw.blogspot.com/2008/04/wage-and-hour-class-actions-by-numbers.html:

The authors performed an interested count of wage and hour cases in the month of March. Highlightt:

Primarily TargetedFood (e.g., coffee shops, franchises, wineries) (14 wage/hour actions)Financial Services (e.g., Prudential, JP Morgan, Countrywide) (9 wage/hour actions) Entertainment (e.g., Casinos, Clubs, Theaters) - 6 wage/hour actions)

Busiest Plaintiffs' counsel -George Kingsley of Kingsley & Kingsley.

Top Five Busiest Courts for wage and hour class actions (March 2008) -
LA Superior Court (39 wage/hour class cases);
Federal District Court, Central District (22 wage/hour class cases); San Diego Superior (11 wage/hour class cases);
Alameda Superior (7 wage/hour class cases);

Orange County Superior (5 wage/hour class cases). Most interesting March 2008 case - Bissett v. Sutter Health, et. al (and I mean et al. - lots and lots of hospitals - throughout California). Plaintiffs counsel is Robert Cantore of Gilbert Sackman. The firm's website (which prominently displays their representation of unions) is here.

New Wage and Hour litigation against Pilgrim's Pride

Michael Hassen, of Jeffer Mangels Butler & Marmaro LLP , a defense firm in California reports:

Arkansas court conditionally certifies, FLSA Class Action alleging failure to compensate workers for time spent donning, doffing and cleaning safety and sanitary gear ...

In re Pilgrim’s Pride Fair Labor Standards Act Litig., ___ F.Supp.2d ___ (W.D. Ark. March 13, 2008) [Slip Opn., at 1 and n.1]. The class action covered workers at 21 plants located in 10 states, and covered “tasks on the chicken processing line, such as slaughtering, cutting, deboning, cleaning, and packaging.”....

Wage and hour developments: 1 for the plaintiff - 1 for the defense

(As reported by Jackson Lewis employment section)

Treble Damages Now Mandated for Violation of Massachusetts Wage and Hour Laws
On April 14, 2008, the treble damages bill (Senate Bill 1059) became law. This new law makes awards of triple damages mandatory for prevailing plaintiffs in civil actions brought pursuant to the Massachusetts Wage and Hour laws. Full Story >

California Legislature Seeks to Ease Penalties for Meal and Rest Period Violations
In the year since the California Supreme Court decided Murphy v. Kenneth Cole Productions, employers have been hit with a surge of class actions for violations of California's meal and rest period laws. Full Story >

New York Court certifies 'opt-out' FLSA collective action to protect workers

Seeking to protect a group of immigrant workers from retaliation related to participation in a collective action under the Fair Labor Standards Act, which requires that they affirmatively “opt in” to the suit, a United States District Court in New York has certified a class action under the Federal Rules of Civil Procedure, in which objecting class members have to “opt out” of the suit, to allow the immigrants to pursue state law claims for unpaid overtime under New York’s Labor Law. Guzman v. VLM, Inc., d/b/a Reliable Bakery et al., No. 07-CV-1126 (JG) (E.D.N.Y. Mar. 2, 2008).

Read more...

Calculating damages in FLSA and wage and hour cases

Singer et. al v. City of Waco, Texas

Moral of the story: Audit your data, use the correct number of work period hours in regular rate calculations, and consider offsets

In this case the Court considers the issue of damages in wage and hour case involving the Waco fire department. In the case, the jury found that the City willfully acted (and in bad faith) when it failed to pay the Plaintiffs overtime due under FLSA.

Following the liability portion of the case, the 180 plaintiff WFD employees entered the damages phase of the trial. In the damages phrase both sides engaged economic damage experts to calculate the value of the unpaid overtime.

Although the The court awarded the plaintiff's a significant amount that including liquidated damages, the award was significantly less than the plaintiffs' expert opined. Specifically, the Court stated that:

• The summaries prepared by the defendant were more credible because they were double checked and audited.
• The Court was also clear (and provided very detailed damage tables) to make sure that the correct number of hours in a pay period were used (as required under FLSA for the calculation of the regular rate).
• To avoid unjust enrichment, The City should be able to count OT overpayments as an offset to the FLSA underpayments.
• In this case the offset was calculated as by, first determining the underpayments due under FLSA, assessing the liquidated damage requirement of FLSA, and then adding the amount underpayments due to the Texas Local Government Code. Only then should the overpayments made by the City during the four years prior to filing the lawsuit be offset against the total damages amount.

Bottom line: Good case to review when calculating damages in wage and hour cases


damage_calc_waco.pdf

Anatomy of a financial services wage and hour lawsuit

Are financial advisers, stock brokers and mortgage loan officers fall FLSA exempt employees? or non-exempt inside-sales employees? Why is there an issue?

There is an issue because financial services professionals (FP) arguably do not meet the conditions for any of the standard overtime exemptions.

For instance, many FPs such as stock brokers are alleged to be not eligible for an administrative OT exemption because they their primary duty involves the sales of financial products. However, the may not fit the sales exemption under FLSA or state labor law because the typical FP, like a stock broker, is not involved in outside or retail sales which the exemption typically applies to in other settings. Furthermore, many FP positions do not require a professional degree of any sort so the professional exemption is typically ruled out.

The DOL has issued some opinion letters on the issue. However they have not completed cleared up the issue. Click here for more of discussion of the recent DOL opinion letters.

Damages issues:

1. According, the misclassification claim opens up the defendant to both OT and possibly minimum wage violations. Many financial professionals work many hours and if they only received a minimum stipend then in a given period there may


2. Common to see allegations and class certification motions in federal and state court in a single case. The key difference is that the Federal court claims are opt-in. The opt-in requirement of Federal court cases mean that to be entitled to the remedy, the individuals must agree to be a part of the lawsuit. The damages accordingly start from the date in which the individual opts in to the lawsuit.

3. In opt-out cases, which tend to be state collective actions the employee must opt-out of the class. Damages then begin on the date the lawsuit is filed.

Prevailing wages requirements expanded in NJ

NJ Governor Jon S. Corzine today signed an executive order regarding prevailing wage requirements for contractors who provide building services for State-leased government buildings.

The executive order ensures that prevailing wage requirements apply to situations where the State is a tenant in the building but the building owner, rather than the State, contracts for the provision of building services.

Important for wage and hour damage calculations

Provision will require:

... that the workers performing such building services shall be paid not less than the applicable prevailing wage rates as ascertained by the lessor from the Commissioner of Labor and Workforce Development, and that the contractor shall provide to each such worker individual written notification every six months of the prevailing wage rates for each classification involved in the contractor’s performance of building services;

Record keeping:

(i) keep accurate records showing the name, classification, and actual hourly rate of wages and any benefits paid to each worker employed by the contractor or subcontractor to perform building services in the property of premises leased by the State;
(ii) preserve those records for two years after the date of payment;
and (iii) make the contracts and the records available at all reasonable hours to the inspection of the Commissioner of Labor and Workforce Development and to any other party to the lease;

Court says 'short shift' bonus violates CA OT rules

Los Angeles Superior Court Judge William MacLaughlin has ruled that Huntington Memorial Hospital violated California Labor Code § 510 by paying its nurses and other employees a lower, hourly, rate-of-pay when they worked overtime shifts of 10 hours or more in a day

Court, like in many other cases, says that the overtimeshift bonus must be rolled into the regular rate in calculating OT losses.

Undocumented worker wage hour lawsuit survives

Court says:

"Although defendants have clearly articulated the tension between the competing policy considerations of the IRCA, the Fair Labor Standards Act, and the relevant provisions of New York's Labor Law, the cases cited by defendants in support of their motion do not establish that they are entitled to dismissal of Huerta's complaint.

"No court has held that an undocumented alien may be deprived of wages for work already performed." Majlinger v. Cassino Contracting Corp., 25 AD3d 14, 26, 802 N.Y.S.2d 56 (2d Dep't, 2005), aff'd sub nom. Balbuena v. IDR Realty LLC, supra." Jara v. Strong Steel Doors, SUPREME COURT OF NEW YORK, KINGS COUNTY, 2007 NY Slip Op 51755U; 2007 N.Y. Misc. LEXIS 6355, September 12, 2007.

Faulty OT comp scheme causes firefighters to sue

FLSA requires overtime payment to non-exempt workers including firefighters. However, the threshold for determining when overtime should be paid is different for different types of jobs. Specifically, Section 207(k) of FLSA requires that firefighters and certain law enforcement employees meet a higher threshold than 40 hours a week before the employer has to pay overtime.

City governments that have been making OT payments, but in the wrong amounts, are finding that not abiding by the 207k exemption can be costly. In some instances, incorrect OT payments actually serve to increase the city's liability.

For instance, one mid-western city agreed to pay its firefighters OT (1.5x) for all hours worked over 155 hours in a 21 day period. The union agreed OT compensation scheme comported with the Section 207k exemption.

However, instead of actually calculating the OT payment for each and every firefighter, the city paid a blanket 5.5 hours premium to every firefighter regardless of the number of hours worked. Clearly for some firefighters, the city has underpaid the amount of OT.

In fact it is argued, that in those instances where the firefighter has worked more than 155 hours, the city, according to section 207k, has not actually paid any overtime at all to those workers. In these types of cases, it is argued that not only should the OT payment not be an offset in the damages calculation, but it should actually be included in the calculation of the indiviudal's base pay. In these instances, the payment of the OT premium, since it is not legally an overtime premium payment, actually serves to increase the city's liability.

When attorneys become expert witnesses

Attorneys in the Wal-Mart break-time class action appeared in a Philadelphia Common Pleas courtroom Tuesday to debate the plaintiffs' request for counsel fees totaling more than $46 million. Among the fees-related expert witnesses called to the stand by the retail giant during the hearing was Ralph Wellington, chairman of Schnader Harrison Segal & Lewis. Wellington who oversees his firm's billing structure, was Wal-Mart's expert on the reasonableness of class counsel's rates.

Read the entire article here: http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1172656993341

Nixon Peabody attorney: Wage and hour lawsuit outlook may worsen for employees in 2007

Excerpted from: Recent Class Action Rulings Offer Good News for EmployersPhilip M. Berkowitz, New York Law Journal01-19-2007, http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1169114541849

According to Nixon Peabody attorneys Philip M. Berkowitz and Randy Gidseg, while the year 2006 saw many similar, high-profile, big-money settlements, a number of recent developments in the class action world suggest that plaintiffs in FLSA cases may have a more difficult time in the courts obtaining a victory.

The article notes that even under the looser definition of 'similarly situated' in FLSA cases, courts have recently been denying plaintiffs class certification in wage and hour cases where the plainitiff has failed to show that the proposed class is composed of similary members. It cites Briggs v. Arthur T. Mott Real Estate LLC as an example.

It further notes that recent DOL decisions suggest that, even if plaintiffs successfully obtain class certification under the FLSA, it may be harder for them to actually win their case. For examples, the authors cite: See Letters from Paul DeCamp, Administrator, U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division, dated Nov. 27, 2006 (registered representatives) and Sept. 8, 2006 (mortgage loan officers).

Wage and hour focus article 2: Time Clock Rounding

Time clock rounding thread from 'labor law talk bulletin board'
(http://www.laborlawtalk.com/showthread.php?t=166921)

Clock Rounding in Employer's Favor Iowa (Employee Question)

I know you get this question a lot, but I wanted to ask it to show my employer. My employer has a clock system that rounds to 1/10 hour (6 minutes), always in the employer's favor. For example, if we clock in at 7:55 it rounds to 8:00 and if we clock out at 4:35 it rounds to 4:30. Is this legal? My supervisor (the assistant manager) says that because they give us a 15 minute break morning and afternoon, the rounding doesn't matter because the rounding wouldn't take as much away from us as the breaks that they give us. I think these are two separate things.Is this rounding always in the employer's favor legal?

If not, can you give me "chapter and verse" to cite to them, either from Iowa or US regulations?The one concession I have gotten from them (after pushing hard a couple of years ago) was that if we clock in late but within the first six minutes of our starting time, we only have to work an equivalent number of minutes in the afternoon to make it up rather than having the full unit taken from us.

Laborlawtalk response #1,

I can tell you that it is not legal for rounding to always work in the employer's favor. Rounding is permitted but only if it is done even-handedly; no matter whose favor it works in.However, I will have to let Patty, Robb, Scott or one of the other payroll experts supply the exact links. (It's Federal, btw.)

Laborlawtalk response #2

The following link is to the federal rules. I do not know what rules Iowa has (if any), but state law cannot make the federal rules go away.http://www.dol.gov/dol/allcfr/ESA/Ti...9CFR785.48.htm

Wage and hour focus article 1

Time and motion experts should work together with statisticians when performing time and motion studies

Case: MARIA CHAVEZ, et al., on behalf of themselves and all others similarly situated v. IBP, INC. and TYSON FOODS, INC., all Delaware corporations, Washington, Eastern District, CV-01-5093-RHW, 2005 U.S. Dist. LEXIS 29714

Punchline: Chavez v. IBP shows the importance of representativeness of a time and motion study used to measure time spent working of the clock. The plaintiffs' shadow study of time spent walking to and from job posts was disallowed and ruled to be unreliable because the study relied on non-representative walking observations

Background (from the court's order concerning the defendant's motion to decertify the class)This is a class action brought under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219, as well as the Washington state Minimum Wage Act ("MWA"), RCW chapter 49.46.005 et seq., the Industrial Welfare Act, RCW chapter 49.12.005 et seq., and the Wages-Deductions-Contribution-Rebate Act, RCW chapter 49.52. The Court has jurisdiction over the class members' FLSA claims under 29 U.S.C. § 216(b) and 28 U.S.C. § 1331.

The named Plaintiffs, Maria Chavez, Ranulfo Gutierrez, Paz Arroyo, Antonio Martinez, and Silverio Diaz, were employed at the Tyson beef slaughter, processing, and hides divisions in Pasco, Washington (the "Pasco Plant") sometime after November 1, 1998. The Rule 23 class was defined in the Court's certification order as: All individuals performing production work in the Pasco plant processing, slaughter and hides division during any time between November 2, 1998 through May 14, 2002, excluding supervisors, managers, quality control employees, guards, mechanics, laundry room employees, janitors, knife room employees, and packaging department employees whose jobs are limited to work performed after the product has been bagged and boxed.

The class is comprised of 1,136 opt-in Plaintiffs bringing claims under the FLSA and Washington state law, and 3,909 Rule 23 Plaintiffs (including 116 FLSA opt-in Plaintiffs with state and federal claims and 2,797 Rule 23 Plaintiffs with only Washington state claims) (Ct. Rec. 633). At trial, 36 processing class members, 14 slaughter class members, and 3 hides class members testified. In total, approximately 5% of the opt-in class, and less than 1% of the opt-out class, testified. The class Plaintiffs seek damages for uncompensated work performed during the period commencing on November 2, 1998, and ending on December 31, 2003.

Expert's part and court opinion of time and motion expert's work:

In a previous case (Alvarez), Plaintiffs presented the testimony of Dr. Kenneth Mericle on the issue of amount of time employees spend walking from their lockers to the production room floor. Dr. Mericle calculated the Alvarez walking times by utilizing a standard rate of speed developed by industrial engineers. In the present action, Plaintiffs assert that the Alvarez walking calculations vastly underestimate the time actually spent walking, and present alternative times based on Dr. Mericle's shadowing study. Dr. Mericle concludes that the average pre-shift walking times for Slaughter are 1.822 minutes and for Processing are 2.622 minutes (Id.). These times include "walking segments from the locker, to the workstation and includes walking to clean glasses and obtain knives, sand paper and miscellaneous job related equipment but not walking for gloves." (Id.)

The Court finds that Dr. Mericle's new walking calculations include instances where employees unnecessarily backtracked or retraced their steps; therefore, they are not an accurate representation of walk time that is work. In addition, Dr. Mericle's walking calculation included a significant amount of walking to complete job activities that were unique to certain job categories. Therefore, the Court finds that Dr. Mericle's calculations did not provide representative evidence of the walking time expended by the class as a whole.

What could have been done: A more representative sample of walking observations could have yielded a more scientifically valid study and may have not been subject to the the same criticisms.

Wage and Hour Meals Stateby State

http://www.dol.gov/esa/programs/whd/state/meal.htm

It gives meal period legislation by state.

Blow to wage and hour cases?

As reported on Wisconsin Personal Injury Lawyer
.Wisconsin Personal Injury Lawyer blog:


Wisconsin's Court of Appeals recently dealt a blow to class actions in a decision involving Wal-Mart and its alleged failure to pay employees appropriately. The appeals court ruled that a class action, in part because of the plaintiffs plan to use statistical and survey evidence, made the class unmanageable.

In re Wal-Mart Employee
Litigation:

Kathleen Hermanson, Ardyce
Weichbrod and George Otradovec,

Plaintiffs-Appellants,

v.

Wal-Mart Stores, Inc., a
Delaware corporation,

Defendant-Respondent.

click here to read the opinion