Wednesday Federal Employment Law Update- FLSA

Hello all, and welcome back for your Wednesday Federal Employment Law update.  Today, we look at a case under the federal Fair Labor Standards Act of 1938, a statute intended to ensure that qualified employees are properly compensated, both in terms of minimum wage compliance and overtime. 

The last time we looked at an FLSA case, the U.S. Supreme Court made new law, holding that retaliation claims under the FLSA could be based on verbal complaints rather than written ones.  In today’s case, Kuebel v. Black & Decker, Inc., 2011 WL 1677737 (2d Cir. May 5, 2011), the Second Circuit references the recent Supreme Court opinion, which impacts one part of the court’s holding.   

In Kuebel, Plaintiff worked as a retail specialist for Black & Decker.  His job duties were to oversee the marketing and sale of B & D products at six Home Depot locations.  He ensured that B & D products were properly stocked, priced and displayed in the stores, trained the Home Depot sales employees about the B & D products, and assisted them in selling the products.  He also was required to use a company issued PDA to log his entrance and exit times at the various Home Depot locations.  In addition to his work at the Home Depot stores, Plaintiff allegedly performed extensive work at home after hours reading and responding to work e-mail, reviewing sales reports, organizing point-of-purchase materials, making display signs, and taking online training courses.

Plaintiff filed suit on his own behalf and on behalf of all similarly situated employees under the FLSA and New York state labor law.  He sought overtime compensation for 1) his full commute time from his home to his first Home Depot stop and from his last Home Depot stop to his home; and 2) all work at home which pushed his workweek beyond 40 hours per week.  Plaintiff also sought a finding that B & D’s violations were willful, entitling him to double damages and a 3-year statute of limitations (rather than the normal 2-year statute), and also, in light of the recent Supreme Court decision in Kasten, sought to reinstate his retaliation claim, as B & D fired him for performance issues a few months after he had verbally complained about unpaid overtime.

At the trial court level, the District Court for the Western District of New York granted summary judgment to B & D on all claims.  On appeal, however, the Second Circuit affirmed in part and reversed in part.  The Second Circuit affirmed the District Court’s ruling as to Plaintiff’s commute time.  Based on a 1999 opinion letter from the U.S. Department of Labor, B & D’s policy was to compensate for commute time in excess of one hour each way.  The Second Circuit found this policy to be in compliance with the FLSA, stating that an employee’s decision to complete additional work at home on his own schedule did not warrant application of the “continuous workday” doctrine. 

However, based on Plaintiff’s allegations that he was told to record only 40 hours of work by his supervisors regardless of his actual time worked because B & D could not afford to pay overtime, the Second Circuit reversed all other parts of the trial court’s orders.  The Second Circuit found that fact issues existed as to whether Plaintiff worked overtime, and also found that B & D may have committed willful violations of the FLSA, potentially entitling Plaintiff to double damages and to stretch his claim back three years before his filing date rather than two.  Finally, even though Plaintiff voluntarily dismissed his retaliation claim due to the state of the law at the time he did so, the Second Circuit instructed the trial court to consider whether to permit Plaintiff to reinstate his retaliation claim in light of the Supreme Court case in Kasten.

As a defense lawyer, I have mixed feelings about these FLSA cases because they are typically attorney-driven, with individual employees pursuing claims for de minimis levels of unpaid time and plaintiff attorneys enjoying the substantially larger payday (the FLSA allows for prevailing party attorney’s fee awards).  However, many workers are under-informed about their rights when it comes to overtime.  The facts of this case sound more compelling than most cases that I read under the FLSA.  I’m actually pretty surprised the the trial court initially tried to kick this case out in its entirety.  We will keep an eye on this one as it heads back to the trial level.

See you tomorrow, all!



THE COMMENTS ON THIS BLOG DO NOT CONSTITUTE LEGAL ADVICE.  NOR DO THEY CREATE AN ATTORNEY-CLIENT RELATIONSHIP.  They are provided for informational purposes only.  Actual legal advice can only be provided after consultation with an attorney licensed in your jurisdiction. 
Explore posts in the same categories: Federal Employment Law Updates

2 Comments on “Wednesday Federal Employment Law Update- FLSA”

  1. K O'Malley Says:

    Interesting read… Now on to the apprentice comments!!!

    1. Wow, shocked Star went out like that. She had it coming, but still wow.

    2. I agree with your final 2 predictions, but would put Lil Jon with a bit better odds. He has always been solid while Marlee pretty well flubbed the last task. I think the desire to have a women in the finals will keep him out, but i could see him going over Jon Rich. Having seen the teaser for next week, Meatloaf going nuts like he was sure hints that he is one of the finalists, speaking of which.

    3. Meatloaf…. just …. Meatloaf

    4. Nene pretty well got all she was going to get out of the show and left on her own terms. She has a good publicist.

    5. Love how Trump refers to Latoya as a huge star. She did nothing. Heck she only got a grand from the Hiltons…. sure they have lost more than that in their couch. Heck anytime your major donor gives less than the average viewer could comfortably give…. you didnt get it done.

    Do you think Ivanka is really Trumps daughter, or just some Hot chick he hired to play his daughter?

    • Craig Salner Says:

      Sorry I never replied to this one, Kev. My thoughts on rebuttal:

      I think Star just hasn’t watched enough of the show over the years. She had herself convinced that her lawyering skills could wiggle her out of any boardroom jam, when in truth Donald’s hook can be so sudden, quick and at times irrational. I really cannot see any scenario where Lil’ Jon makes the final and John Rich doesn’t. Rich has been a tour de force from the first week on. He’s been the dominant male player from a fundraising standpoint, has been dubbed the best player by the PM in the boardroom on several weeks, and has been the key force behind some of the more creative moves like bringing in Niki Taylor or getting Jimmy Fallon to donate and appear at the comedy club

      Speaking of which, what a poorly conceived task that comedy club thing turned out to be. The entire criteria was fundraising, or selling tickets in advance of the show. Neither team really marketed the talent that was appearing at the show, so the efforts in producing a decent show and picking the better comedians was totally pointless.

      I don’t read anything into that Meatloaf teaser. That nut bar could just as easily go ballistic over a tiny issue as a returning member helping on the final task. I saw Rich was on there too. He could probably be a nice asset. Good worker, well organized. I hope at some point Rich gets the chance to apologize for thinking Jose Canseco left the show to avoid elimination haha

      I think Trump just wanted to recognize LaToya for some nice work on the prior tasks that she went unrecognized for by her teammates. I think he sees her as a legitimately troubled person with a low self esteem.

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