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Medical Transcriptionist Unpaid Wage and Overtime Lawsuit Filed Against Transcend Services, Inc.

Kevin J. Dolley — Fri, 11 May 2012 22:06:00 GMT

On May 11, 2012, the Law Offices of Kevin J. Dolley, LLC and the Riggan Law Firm, wage and hour law firms, filed an individual and collective class action lawsuit for unpaid wages and overtime pay against Transcend Services, Inc., a corporation which provides medical transcription services to hospitals and medical providers throughout the United States. The nationwide collective action lawsuit was filed in the United States District Court for the Northern District of Illinois. To read a copy of the lawsuit, click here.

The lawsuit—filed on behalf of thirteen named Medical Language Specialists who work from home and are current or former employees of Transcend—alleges that Transcend violated the Fair Labor Standards Act (FLSA) by failing to compensate Medical Language Specialists at a rate equal to the federal minimum wage ($7.25 per hour) and at a rate equal to time-and-a-half for hours worked in excess of 40 per work week. The lawsuit was filed on behalf of the individually named Medical Language Specialists and on behalf of all similarly situated Medical Language Specialists who sign a consent to joint lawsuit form.

The lawsuit states that Medical Language Specialists employed by Transcend are compensated per line edited or transcribed, or "hand on keyboard" time. Their compensation per line edited averages approximately 4.5-5 cents per line, while their compensation per line transcribed averages approximately 8.5-9 cents per line edited.

The lawsuit states that Medical Language Specialists are not compensated for many activities which are essential to the accurate transcription and editing of lines. These duties include verifying patient and physician information is entered in the medical report correctly; communicating with Transcend officials and Team Leaders via email and Yahoo Instant Messenger while editing or transcribing medical reports; ensuring the accuracy of physician and patient personal information by using Google and other online sources to verify locations and addresses; ensuring the proper medical term is inserted into the medical record by consulting Google and online sources for spelling and definition information; and communicating with Transcend technical support regarding any problems or defects with the transcription/editing and voice-recognition software.

The lawsuit alleges that the failure to compensate Medical Language Specialists for activities other than "hand on keyboard time" led many of these workers to either not be paid at least $7.25 per hour, or work in excess of 40 hours per work week without being paid time-and-a-half their regular rate of pay.

The lawsuit further alleges that Medical Language Specialists "flexed" their assigned work shifts in the event that there were no medical records to be edited or transcribed in Plaintiffs' electronic queue at any point during their shift. Time "flexing" required Medical Language Specialists to be on call and log in and out of Transcend's transcription/editing software for extended periods of time, frequently until well after their assigned shift ends, to meet the minimum requirement for lines edited or transcribed during a given shift.

St. Louis Missouri Class Action Litigation

Kevin J. Dolley — Sat, 28 Apr 2012 21:29:00 GMT

Initial Class Need Not Be Final Class Definition Under Missouri Law

In Hope v. Nissan North America, Inc., 353 S.W. 3^rd 68 (Mo. App. 2011), Plaintiffs brought a class action lawsuit claiming that the presence of a defect in the dashboard (dashboard bubbling) of the FX Vehicles diminished the vehicles' value, regardless of whether the defect actually manifested. Plaintiffs argued that because the defect places a stigma upon all FX Vehicles, reducing marketability and resale value of each particular car, a proper class should be certified by the trial court. Plaintiffs argued that the court should define the class as encompassing all Missouri owners of Nissan FX Vehicles for purposes of class certification.

Missouri Class Action Law

The Missouri Court of Appeals determined that the Plaintiff is the master of his complaint, and he has the burden and responsibility of proposing a legally acceptable class definition. Plaintiff has the burden of submitting a proper class definition or amendment to the Missouri trial court. The Court of Appeals further found that the defendant cannot be coerced to assist in the success of the plaintiffs' attempt to obtain class certification by having the court require the Defendant to propose a class definition.

Nissan contended that Missouri law requires a "final, precise, and definite class definition" prior to initial certification. The Court of Appeals determined that this limitation is not imposed upon Missouri trial courts. Requiring the trial court to rely solely on the original certification definition would defeat all aspects of judicial economy, the underlying purpose of class actions, as the case develops.

St. Louis Missouri Class Action Lawyer

Missouri courts consistently recognize a certified class may subsequently be modified or decertified later before decision on the merits. Therefore, the Missouri Court of Appeals found that it would make no sense to require that the initial definition be the final class definition.

Contact a St. Louis Missouri Class Action Attorney

Attorney Kevin J. Dolley is a St. Louis, Missouri class action attorney representing plaintiffs and defendants in class action prosecution and defense. If you have questions about a possible class action or defense of a lawsuit for damages based upon a class action that has been filed against your company, please do not hesitate to contact Mr. Dolley directly at (314)645-4100 or via email at kevin@dolleylaw.com.

St. Louis MO FLSA Overtime Lawyers

Kevin J. Dolley — Sun, 15 Apr 2012 20:37:00 GMT

St. Louis City Circuit Court Conditionally Certifies Collective Action Under the FLSA

St. Louis FLSA Class Certification

The lawyers at the Law Offices of Kevin J. Dolley's Motion for Conditional Certification of a collective action class was conditionally granted and certified under 29 U.S.C. §216(b) of the Fair Labor Standards Act (FLSA) by St. Louis City Court Judge, Circuit Judge Mark H. Neill. The court granted certification of the similarly situated telecommunications workers and cable installers. See attached Order.

St. Louis Unpaid Wages and Overtime Class Certification Order

Plaintiffs are a class of similarly situated telecommunications workers denied pay and overtime benefits by their employers, TPS Communications and Robert Locklear. The lawsuit seek unpaid wages and overtime benefits owed to Plaintiffs and similarly situated class members over the past three years under the FLSA.

The court determined that the Plaintiffs established to the satisfaction of the court "substantial allegations that the putative class members were together the victim of a single decision, policy or plan." The court authorized notice be sent to the potential class members and provided the putative class members notice of their right to sign an opt-in consent form.

St. Louis Court Grant's Plaintiffs' Motion for Class Certification

The St. Louis City Court's Order specifically granted Plaintiff's Motion to Conditionally Certify Class, Order Disclosure of Putative Class Members' Names and Contact Information and to Facilitate Class Notice. Defendants were ordered to produce to Plaintiffs a list of all potential class members within fourteen days of the date of the Court's order.

New York Cable Installers Granted FLSA Conditional Certification

Kevin J. Dolley — Sun, 18 Mar 2012 02:54:00 GMT

New York Cable Installer Unpaid Overtime

Workers employed as Cable Installers are commonly subject to overtime violations by their employers. One of the most common of these violations is that cable companies and subcontractors commonly pay cable installers a fixed amount per job or "piece rate wages" without overtime compensation for hours worked in excess of 40 per workweek. The below case analysis discusses a recently conditionally certified class action of cable installers paid fixed amounts per cable installation or repair.

Salomon v. Adderley Industries, Inc., 2012 WL 716197 (S.D. N.Y. March 6, 2012) was filed under the federal Fair Labor Standards Act (FLSA) and New York state law for payment of overtime wages to the class of employees.

New York FLSA Conditional Certification

The plaintiffs in Salomon were cable installers that installed and repaired cable and were paid a fixed rate for each job completed. They were not paid a salary or hourly rate. The plaintiffs were not paid overtime compensation regardless of the number of hours worked per workweek.

Before the court was the plaintiffs request for conditional certification of a collective action of similarly situated cable installers under the FLSA. § 216(b). Conditional certification allows the plaintiffs to send opt-in notice to potential class members. The notice includes a written consent form that the noticed class members are permitted to sign to join the case as opt-in class members.

Courts commonly employ a two-step process to certifying a collective action under the FLSA. "In the first stage of analysis, a court determines whether notice should be sent to potential opt-in plaintiffs who may be "similarly situated" to the named plaintiffs, "thus issuing a 'conditional certification' of the collective action." See e.g., Winfield v. Citibank, N.A., 10 Civ. 7304(JGK), 2012 U.S. Dist. LEXIS 16449, at *8 (S.D.N.Y. Jan. 27, 2012). "[C]ourts regularly rely on plaintiffs' affidavits and hearsay statements in determining the propriety of sending notice." See Moore v. Eagle Sanitation, Inc., 276 F.R.D. 54, 59 (E.D.N.Y.2011) (citing cases).

To establish the modest showing to establish a common plan or policy in violation the plaintiffs provided declarations stating that the defendant employed field technician cable installers that reported to the office in the morning and were then given a work route for the day and necessary equipment. The work of the technicians was similarly that of cable installation and repair. At the end of the workday, the employees commonly came back to the office and returned equipment and completed paperwork for the day. The class of technicians were paid a fixed amount per job completed.

The court found that the plaintiffs made the necessary showing to establish that the putative class was similarly situated as piece rate workers to establish the basis for conditional certification.

Chicago Overtime Class Action Legal Update

Kevin J. Dolley — Sun, 18 Mar 2012 00:32:00 GMT

Chicago Illinois Wage and Hour Class Action

In Hawkins v. Securitas Sec. Services USA, Inc., 2011 WL 5598365 (N.D. Ill. 2011), the United States District Court for the Northern District of Illinois located in Chicago, Illinois examined the Plaintiffs' request for Rule 23 class action certification of their claim that Defendant Securitas violated the Illinois Minimum Wage Law (IMWL) by failing to pay them for off-the-clock work. The claims of the plaintiffs in federal court also included claims for conditional certification under the Fair Labor Standards Act (FLSA).

Illinois Class Certification Granted

The court granted class certification for Plaintiffs' IMWL claim which sought relief for off-the-clock time spent in mandatory training and orientation. The court granted class certification as to this claim because Plaintiffs satisfied the four requirements of Rule 23(a) and the class fulfilled the requirements in Rule 23(b)(3).

Class Certification granted for off-the-clock time spent in mandatory training and orientation

Under Rule 23(a), numerosity was satisfied because Securitas had over 10,000 employees in Illinois; commonality was satisfied because the training claim presented the common factual question of whether Securitas required its employees to undergo training and orientation and the common legal question of whether the time spent on training and orientation under the IMWL; typicality was satisfied because the two Plaintiffs put in training and orientation hours typical of other Securitas employees; and adequacy was satisfied because the alleged faults of the named plaintiffs and class counsel were not sufficient to be considered antagonistic or conflicting with those of the absent class members.

Under Rule 23(b)(3), the court found that questions of fact or law common to class members predominated over questions affecting individual members and that a class action was superior to other available methods for fairly and efficiently adjudicating the controversy. The court concluded that questions of fact and law predominated because Securitas required its employees to undergo training and orientation and this training and orientation was compensable under the IMWL. The court also concluded that a class action was superior for purposes of fair and efficient adjudication because each class member's recovery on the training/orientation claim is likely to be small.

Class Certification not granted as to pre and post-shift work and uniform cleaning/maintenance

However, the court determined that class certification was not appropriate for two other categories of off-the-clock work: pre-and post-shift work and uniform cleaning/maintenance.

For the pre and post-shift work claim of Plaintiffs, the court stated that because individual security officers in the putative class testified to working under various circumstances and were managed by different personnel at various sites throughout the region, it was impossible to determine whether Securitas had actual or constructive knowledge that any given employee was performing pre-shift or post-shift work.

For the uniform cleaning/maintenance claim of Plaintiffs, the court stated that an individualized inquiry into the facts and circumstances of each employee's uniform and cleaning/maintenance habits to determine whether the employee utilized uniforms that required special washing or treatment defeated class certification.

Chicago FLSA Lawyers

The Law Offices of Kevin J. Dolley represents Chicago, Illinois workers and employees nationwide in wage and hour litigation for overtime and minimum wage under the FLSA.

Chicago Overtime Law - FLSA Class Action Update

Kevin J. Dolley — Mon, 12 Mar 2012 01:13:00 GMT

Chicago, Illinois Federal FLSA Law

In Smith v. Family Video Movie Club, Inc., 2012 WL 580775 (N.D. Ill. 2012), the United States District Court for the Northern District of Illinois located in Chicago, Illinois examined the Plaintiff employees' request for conditional certification of a class of employees denied overtime compensation. The Defendant Family Video Movie Club (FVMC) operated video game rental stores in Illinois, Iowa and Michigan.

Chicago FLSA Class Action Litigation

Plaintiffs were not properly paid for all hours worked for their employer. Plaintiffs alleged that they were not paid for work performed "while not on the clock, such as assisting customers, opening stores, cleaning and maintaining stores, making phone calls, working on inventory, stocking shelves, closing down stores, and making bank deposits."

The class action claims included claims under the federal FLSA and the Illinois and Michigan Minimum Wage Law. In the motion before the court, the Plaintiffs were moving for conditional certification of a collective action under the FLSA.

Collective Actions Under the FLSA

The court granted Plaintiffs' motion for conditional certification of collective action. The court found that Plaintiffs identified several common policies and practices of Defendant through discovery that potentially violate the FLSA. For instance, Plaintiffs highlighted evidence that management frequently required pre and post-shift cleaning work to be done off-the-clock and required employees to run errands to stores off-the-clock.

Defendant's argument that it had a written policy which prohibited employees from working off-the-clock was unconvincing to the court. The court concluded this because Plaintiffs presented evidence suggesting that overtime hours were highly discouraged and Plaintiffs were not provided sufficient time to complete their tasks on-the-clock.

The court was also unconvinced by Defendant's argument that the analysis of the claims brought by Plaintiffs would require a highly individualized inquiry for each Plaintiff. The court noted that it is inappropriate to consider whether Plaintiffs' claims were too individualized at the conditional certification stage of the analysis. The Plaintiffs satisfied their "minimal showing" required to obtain conditional certification.

FLSA Class Notice

Defendant also argued that the proposed class notice and class definition offered by Plaintiffs was improper. Defendant contended that notice was unnecessary since Plaintiffs' counsel already began soliciting putative class members by sending messages on facebook. However, the court held that prior informal efforts by Plaintiffs' counsel to identify potential class members did not negate the need for an organized notice procedure in which potential class members are presented with necessary information in a clear and uniform fashion. The court ordered the parties to meet and confer and attempt to formulate an agreed upon proposed notice.

Wage, Hour and Overtime Law - Phoenix, Arizona

Kevin J. Dolley — Sun, 11 Mar 2012 05:48:00 GMT

Phoenix Overtime Law

The Law Offices of Kevin J. Dolley represents employees nationwide in individual and class action FLSA cases. The below discussed case from the Federal District Court located in Phoenix, Arizona discussed and ruled inapplicable the "retail or service establishment" exception contained in the FLSA.

The FLSA forbids an employer engaged in commerce from "employ[ing] any of his [non-exempt] employees ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1). In Partida v. American Student Loan Corp., 2008 WL 190440 (D. Arizona January 18, 2008), the court determined based upon the pleadings that the plaintiff employees were non-exempt employees for purposed of the Fair Labor Standards Act (FLSA).

Loan Processor Overtime Wage, Hour Overime Rights

In Partida, Defendant was in the business of providing consolidated loans services, including preparation of applications and providing information and documentation to prepare loan applications. The plaintiffs prepared and processed loan applications and answered phone calls. Plaintiffs were paid based upon the number and type of loan application that was processed. The wages paid to the plaintiff employees was essentially a form of piece rate wages without time and a half paid for hours worked in excess of 40 per workweek. During peak times, the plaintiffs often worked more than 40 hours per week.

FLSA Retail or Service Establishment Exception Not Applicable

The FLSA contains a retail exemption for particular employees who work for a retail or service establishment and are paid in excess of one and one-half times the minimum hourly rate and obtain substantial compensation through commissions. § 207(i).

The definition of a "retail or service establishment" has been defined by the Department of Labor (DOL) regulations as selling goods or services, serving the needs of the community it is located, located at the very end of the stream of distribution, deals in small quantities of products and does not take part in the manufacturing process. The DOL has noted that establishments such as "accounting firms, credit companies, finance companies, insurance brokers, loan offices, and tax services" are not likely retail or service establishments.

The court determined that the Defendant was not a "retail or service establishment" under the FLSA based upon its failure to meet the minimal threshold requirements. The Defendant employers' business was determined by the court to be not located at the end of the steam of commerce because of its work with lenders. See, e.g., Walton v. United Consumers Club, Inc., 786 F.2d 303, 307 (7th Cir.1986) (middlemen are not at the very end of the stream of distribution). The defendant did not distribute a good or service the public seeks in general.

Phoenix Arizona FLSA Analysis

This case shows that the "retail or service establishment" exception is narrowly drawn and difficult for employees to fall within the exception. If you have a question regarding a wage or hour issue as a current or former employee, contact attorney Kevin J. Dolley directly at (314)645-4100 or by email at kevin@dolleylaw.com.

Seattle Overtime Attorney - FLSA Class Certification Update

Kevin J. Dolley — Mon, 05 Mar 2012 05:03:00 GMT

Seattle, Washington Overtime Lawyer

In Khadera v. ABM Industries Inc., Case No. C08–0417 RSM (W.D. Wash. December 1, 2011), the United States District Court for the Western District of Washington, located in Seattle, Washington, denied the Defendant employer's Motion to Decertify a collective action under the Fair Labor Standards Act (FLSA).

FLSA Off-the-Clock Unpaid Overtime Claim

Defendant employers provided janitorial services throughout the State of Washington. Plaintiff employees claimed that Defendants violated the FLSA by requiring the janitors to work "off-the-clock" without overtime compensation. Such "off-the-clock" work included failing to provide adequate meal and break periods and overtime compensation. Prior to the Defendant filing its motion with the court for decertification, the court had previously granted conditional certification to the plaintiff FLSA class and allowed for notice to be sent to the putative class of FLSA opt-in plaintiffs.

Overtime Class Certification

In determining whether the class should be decertified, the court applied a three factor test which considered: 1) the factual and employment settings of individual plaintiffs; 2) the different defenses to which the plaintiffs may be subject on an individual basis; and 3) the degree of fairness and procedural impact of certifying the action as a collective action.

The Opt-In FLSA Plaintiffs are similarly situated

The court first determined that the individual Opt-In Plaintiffs are similarly situated. The Defendant argued that because the 350 Opt-In Plaintiffs held at least 24 different job titles and these varying job titles reflected differing levels of responsibility and skill, working conditions, co-workers and supervisors, the Opt-In Plaintiffs were not similarly situated. Plaintiffs responded that they are similarly situated because 278 of the Opt-In Plaintiffs held the title of "janitor," cleaning was the primary duty of the overwhelming majority of the Opt-In Plaintiffs, and each of them was subject to Defendant's uniform wage and hour policies. The court found particularly convincing the Plaintiffs' argument that cleaning was the primary duty of the vast majority of the Opt-In class.

Applicable defenses do not defeat certification

Defendant first argued that decertification must be granted because the question of whether Defendant had actual or constructive knowledge that Plaintiffs were not being paid for overtime work would vary depending upon whether the individual Plaintiff complained to his or her supervisor. The court disagreed, holding that Plaintiffs have cited evidence that a finder of fact might reasonably rely upon in concluding that Defendant had constructive or actual knowledge that a large number of employees were not being compensated for overtime work.

Defendant next argued that decertification should be granted as to approximately 50 individual Opt-In Plaintiffs because they signed documents agreeing to arbitration. The court disagreed, finding it persuasive that the Defendant did not move to compel arbitration until a year after the opt-in period ended, thus waiving any right they may have had to compel arbitration at the beginning of the lawsuit before extensive litigation and discovery occurred.

Defendant finally argued that decertification is appropriate because the Plaintiffs' wage and hour theories are highly individualized and fact specific, particularly as to whether supervisors altered employee time cards. The court disagreed, holding that any defenses Defendant may have could be raised in a collective forum, where Defendant will be free to cross-examine individual representative Plaintiffs and defend themselves against the Plaintiffs' allegations.

Defendant asserted that fairness and procedural concerns support decertification due to the purported disparity between Plaintiffs and their different claims. The court disagreed, concluding that the number of differences in the individual working conditions of various Opt-In Plaintiffs does not render the collective proceeding unfair or procedurally unsound. The court found convincing the fact that Plaintiffs have presented the court with a declaration from a statistician that testimony from a sample group of Opt-In Plaintiffs can be generalized to the larger group as a whole.

Kansas City MO Trash Workers Entitled to Overtime Compensation

Kevin J. Dolley — Tue, 28 Feb 2012 04:19:00 GMT

Kansas City FLSA Overtime Law

Workers employed as trash and garbage collectors are commonly subject to violations by waste removal employers of their rights under the Fair Labor Standards Act (FLSA) and prevailing wage laws. Attorney Kevin J. Dolley represents employees in unpaid overtime and prevailing wage claims nationwide. Mr. Dolley currently represents Kansas City workers in wage and hour litigation, including claims under the FLSA and Missouri law.

Mr. Dolley can be reached directly at (314)645-4100 or by email at kevin@dolleylaw.com. Below is a discussion of a Kansas City, Missouri federal court FLSA court decision. The court's analysis touches upon the question of which employees are considered exempt and non-exempt, an issue that Mr. Dolley regularly reviews with potential clients.

Kansas City Federal District Court

In Graham v. Town & Country Disposal of Western Missouri, Inc., 2010 WL 3927756 (W.D. Mo. October 4, 2010), the United States District Court for the Western District of Missouri, located in Kansas City, Missouri, examined the employer, Town & Country Disposal of Western Missouri, Inc. ("Town") alleged failure to pay overtime compensation under the FLSA. The Plaintiff employees alleged that the employer engaged in willful violations of the FLSA for refusal to pay overtime compensations for hours worked in excess of 40 hours per workweek.

The workers were classified by the Defendant as salaried employees and the Plaintiffs alleged that they were misclassified and wrongfully not paid overtime at time and a half the regular rate of pay for hours worked in excess of 40 hours per workweek. Plaintiffs sought an injunction ending the employer's illegal pay practices and lost wages and liquidated damages as compensation.

The Defendant employer filed a motion to dismiss the Complaint alleging that the trash workers failed to establish Defendant was subject to coverage under the FLSA. The employer argued that the Plaintiffs failed to establish subject-matter jurisdiction over Defendant based upon alleged inapplicability of the FLSA to the employer. Defendant argued that trash removal businesses, such as Defendant, were not subject to FLSA enforcement actions.

FLSA Enterprise Coverage

The court noted that the FLSA extends to workers employed in an "enterprise engaged in commerce or in the production of goods for commerce." The FLSA presently defines enterprise coverage as "an enterprise that has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person." 29 U.S.C. § 203(s) (1976).

The court noted that Defendant failed to cite to applicable law under the most current definition of enterprise coverage in effect since 1976. The court further pointed out that a case should not be dismissed for lack of subject matter jurisdiction unless it is established that the application of federal law is "immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous." See Ali v. Ramsdell, 423 F.3d 810 (8th Cir. 2005) (citing Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 285 (1993).

The court found that the Complaint established a claim under the FLSA and subject matter jurisdiction. The Complaint stated the Plaintiffs' employer, routes which the trash collectors worked in Missouri and Kansas and that such work established that the employer engaged in interstate commerce. Further "determination of 'enterprise coverage' under the FLSA is one that must be resolved on the facts of each case." Donovan v. Weber, 723 F.2d 1388, 1391-92 (8th Cir.1984). Based upon the court's determinations, it denied Defendant's motion to dismiss.

West Virginia FLSA Overtime Lawyer

Kevin J. Dolley — Mon, 27 Feb 2012 03:54:00 GMT

In Seum v. McClure Staffing LLC, No. 5:11CV79 (N.D.W.V. Jan. 27, 2012), the United States District Court for the Northern District of West Virginia considered Defendants' Motions to Dismiss concerning alleged violations of the FLSA, the West Virginia Wage Payment and Collection Act, and a claim for retaliation under the FLSA.

Plaintiff was employed by defendant McClure Staffing LLC and Defendants Johnson and Williams were plaintiff's supervisors. Plaintiff sued defendants under the FLSA for failure to pay adequate overtime. The U.S. Department of Labor audited defendants and concluded McClure Staffing was not paying overtime wages to its employees. After the audit and paying the employees, however, plaintiff alleged that McClure Staffing did not change its payroll practices, and resumed its prior practices of failing to adequately pay overtime to employees.

In response to plaintiff's complaint, defendants Johnson and Williams filed joint Motions to Dismiss under Fed.R.Civ.P. 12(b)(5) and (6), arguing that plaintiff failed to comply with Fed.R.Civ.P. 4 with regard to service of process and failed to state a cause of action against them. Defendant McClure Staffing also filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(5), arguing the plaintiff failed to comply with Fed.R.Civ.P. 4 with regards to service of process.

Defendants' Motions to Dismiss pursuant to Fed.R.Civ.P. 12(b)(5) denied

Defendant McClure Staffing argued that service upon it was insufficient because the plaintiff's process server served defendant Johnson instead of one of McClure Staffing's designated agents of process. The court denied this motion, holding that serving defendant Johnson was appropriate since she is General Manager of McClure Staffing and serving her satisfies the requirements of Fed.R.Civ.P. 4(h)(1)(B).

Defendants Johnson and Williams argued service upon them was insufficient under Rule 4 because plaintiff failed to prove service upon them to the court. The court disagreed, holding that proof by affidavit of the process servers who served each of the defendants was filed with the court, as required by Rule 4(I)(1).

Defendants Johnson and Williams' Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) denied

Defendants Johnson and Williams argued that the plaintiff failed to allege sufficient facts to place them within the definition of "employer" under both the FLSA and the West Virginia Wage Payment Collection Act. The court first held that plaintiff pled that both Johnson and Williams exerted sufficient control over his employment as to qualify as employers under the FLSA. Next, the court held that the plaintiff alleged sufficient facts demonstrating that Johnson and Williams were his employers under the West Virginia Wage Payment Collection Act because the West Virginia Supreme Court of Appeals has consistently held that the term "employer" encompasses corporate officers and individuals.

Defendants Johnson and Williams also argued that plaintiff's claim for retaliation under the FLSA failed to allege sufficient facts to state a claim against them since the alleged retaliation occurred after the plaintiff was terminated. The court denied defendants' motion to dismiss, citing that it is well established under the FLSA that its protections apply not only to current employees, but also to former employees.

Conclusion

In sum, the court denied both Motions to Dismiss and held that plaintiff alleged sufficient facts to state claims for overtime compensation and retaliation under the FLSA.

Idaho FLSA Unpaid Overtime Lawyer

Kevin J. Dolley — Mon, 27 Feb 2012 03:15:00 GMT

Idaho FLSA Unpaid Overtime Law

In Warren v. Twin Islands, LLC, No. 1:11-cv-00098-BLW (D. Idaho, Feb. 2, 2012), the United States District Court for the District of Idaho considered competing motions to conditionally certify a collective action under the FLSA and plaintiffs' motion to equitably toll the statute of limitations under the FLSA. Defendants operated self-storage units throughout the state of Idaho; plaintiffs worked as on-site managers at different storage offices. Plaintiffs alleged they were improperly classified as "exempt" managers under the FLSA and that they were instructed to log only 35 hours of work per week even though they frequently worked in excess of 40 hours per week.

Plaintiffs satisfied the standards necessary to certify a class under the FLSA

The court granted plaintiffs conditional certification under the FLSA because the six plaintiffs submitted affidavits indicating they were required to work more than 35 hours per week and that they were classified as exempt employees. Also, four of the six plaintiffs indicated that they spoke to other employees and that these other employees say they worked under similar conditions. Because Defendants did not argue that they had different policies regarding on-site managers at different store locations and plaintiffs satisfied the "modest" burden required at the initial stage by presenting sufficient evidence that they and potential plaintiffs held the same positions and were subject to the same allegedly improper policies, the court determined that the plaintiffs were entitled to conditional certification under the FLSA.

Defendants' conduct does not justify equitably tolling the statute of limitations

The court held that the statute of limitations should not be equitably tolled for all opt-in class members. Plaintiffs argued that because the defendants did not respond to their request to stipulate to conditional certification, the statute of limitations for each individual party plaintiff should be tolled as of the date they filed this motion (August 9, 2011). However, noting that the equitable tolling of the statute of limitations is to be used sparingly, the court held that the FLSA does not require defendants to respond to a request for stipulation. The court did, however, toll the statute of limitations from October 9, 2011 through the date this order was entered (February 2, 2012) because this motion was pending for an unusually long time (since August 9, 2011). The court also allowed for notice to the putative class of opt-in plaintiffs dating back three years.

The case shows that the opt-in nature FLSA collective actions requires that action be taken promptly to certify the class and get notice out to potential opt-in plaintiffs.

Overtime Law Under the FLSA - Indianapolis Indiana (Inside Sales)

Kevin J. Dolley — Mon, 27 Feb 2012 02:49:00 GMT

Indianapolis, Indiana Overtime Law

Federal unpaid overtime recovery attorney Kevin J. Dolley represents workers nationwide in overtime and minimum wage claims under the FLSA. Below is a discussion of a recent case from the federal district court located in Indianapolis, Indiana.

In Schnepf v. Brothers Auto Salvage Yard, Inc., Case No.: 1:10-cv-0316-TAB-JMS (S.D. Ind. Feb. 10, 2012), the United States District Court for the Southern District of Indiana held a bench trial on a claim made under the Fair Labor Standards Act (FLSA). Plaintiff worked as an inside salesman for Defendant, was paid a weekly salary, and regularly worked over 40 hours per work week for which he was not compensated at one-and-a-half times the regular rate of pay. Defendant argued that Plaintiff was exempt from overtime compensation pursuant to the administrative exemption.

Plaintiff not an exempt employee under the FLSA

The court found that Plaintiff was not exempt from overtime compensation pursuant to the administrative exemption. Defendant presented no evidence that Plaintiff performed any administrative job duties. Plaintiff's primary job duty was to sell automotive parts to individual customers. Importantly, the court also noted that Plaintiff had "little latitude" to negotiate prices with customers; Defendant provided guidelines for inside salesmen to follow and Plaintiff had to get permission from management if he wanted to depart from the suggested prices in the guidelines. If Plaintiff exercised any discretion, the court found that it was in regards to making routine sales, as opposed to "matters of significance" to the Defendant.

The court also found that Plaintiff was not exempted as a salesperson under the FLSA. Significant to the court was the fact that Plaintiff never left the premises of Defendant in order to make a sale and did not receive a commission for sales made. A salesman that works outside of the office as a primary duty is commonly exempted from overtime compensation.

The 3 year statute of limitations applies

Because Defendant failed to make an adequate inquiry into whether its conduct was in compliance with the FLSA, the court held that the three year statute of limitations applied to Plaintiff's claims. A manager for Defendant testified that Defendant made no effort to determine if its employees were being properly compensated and he was unaware of any reviews being conducted of the duties of an inside salesperson to determine whether employees were being properly compensated.

Damages

The court assessed the unpaid overtime at issue by first calculating Plaintiff's regular rate of pay, which the court concluded was equal to dividing Plaintiff's weekly salary by the number of hours he was scheduled to work. Assessing a regular rate of pay for five separate periods, the court determined that Plaintiff was entitled to $25,075.37 in unpaid overtime.

The court next determined that Plaintiff was entitled to liquidated damages in an amount equal to his unpaid overtime because Defendant did not meet its burden of demonstrating that it acted in good faith with reasonable grounds to believe that its actions did not violate the FLSA.

Defendant attempted to argue that it was entitled to a deduction from the overtime wages granted Plaintiff for any meals provided Plaintiff during his employment. The court rejected this argument on the basis that the evidence offered by Defendant which purportedly proved the amount spent on meals was unsatisfactory; Defendant offered only a generalized estimate of aggregate costs of Plaintiff's meals, not a detailed record.

Philadelphia PA - FLSA Overtime Law

Kevin J. Dolley — Sun, 26 Feb 2012 04:26:00 GMT

The Law Offices of Kevin J. Dolley, LLC is a nationwide unpaid overtime law firm that represents workers in FLSA claims if federal district courts. Below is a partial description of a recent FLSA case from the Federal District Court located in Philadelphia, Pennsylvania.

FLSA Overtime Claims in Pennsylvania Federal District Court

In Williams v. Securitas Sec. Services USA, Inc., 2011 WL 3629023 (August 17, 2011), the United States District Court for the Eastern District of Pennsylvania, located in Philadelphia, Pennsylvania, examined a case involving violations of the Fair Labor Standards Act (FLSA) based upon an employer's failure to pay private security guards overtime compensation.

Plaintiffs were employed by Defendant Securitas Security Services USA, Inc. as security guards. Plaintiffs sought brought their case as a collective action seeking which allows for "FLSA violations affecting multiple employees [to] be redressed in a collective action. 29 U.S.C. § 216(b); Hoffman–LaRouche v. Sperling, 493 U.S. 165, 169–71, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989).

FLSA Collective Actions

Plaintiffs alleged that the employer knowingly violated the FLSA by requiring its security guards to perform various work without overtime compensation, including "job training work, pre-shift work, post-shift work and uniform maintenance work." The court determined that "on the basis of Ord's declaration and Securitas' representations, the court is satisfied that Ord's FLSA claim pertaining to the initial orientation program arose from an employment practice common to all Securitas employees in Pennsylvania." See Bramble, 2011 U.S. Dist. LEXIS at *15.

Indianapolis Indiana Overtime Lawyers

Kevin J. Dolley — Fri, 24 Feb 2012 03:58:00 GMT

Indianapolis, Indiana Overtime Law

In Castaneda v. TD Stout Preservation, Inc., Case No. 1:10–cv–0861–JMS–DML (S.D. Ind. Feb. 10, 2012), the United States District Court for the Southern District of Indiana, Indianapolis District held a bench trial on a claim made under the Fair Labor Standards Act (FLSA) and Indiana Minimum Wage Law (IMWL). Plaintiff worked as a laborer for his employer being paid a set daily wage, the employer failed to pay any premium for hour worked in excess of 40 hours per workweek and the employer did not keep track of hours worked. The evidence established that the employer had a policy to pay overtime compensation to non-exempt employees but that no overtime hours were recorded or paid by the employer over the three years prior to filing of the lawsuit.

Indiana Overtime Law

The Court noted that the Indiana Minimum Wage Law does not apply when the FLSA is applicable. See, e.g., Abner v. Dept. of Health, 777 N.E.2d 778, 785 (Ind.2003) (reiterating that "the [FLSA] is the exclusive remedy for enforcing rights created under that federal statute.").

FLSA Overtime Violations in Indianapolis Federal Court

The court determined that the employer and its corporate officer Defendant were subject to the FLSA's overtime requirement and violated those requirements by failing to pay Plaintiff time and a half overtime compensation and violated the record keeping provisions of the FLSA. The court held that "[t]he conduct of the Defendants was neither consistent with the FLSA, nor consistent with their own employee handbook policy requiring the payment of overtime at the rate of 1½ the employee's regularly rate for hours worked in excess of 40 hours in a work week. These inconsistencies establish that Defendants' failures to comply with the FLSA were not in good faith."

The court awarded Plaintiff damages in the amount of unpaid overtime wages and double damages as liquidated damages for the employer's willful violations of the FLSA and attorney's fees.

Phoenix Arizona Overtime Law Under the FLSA

Kevin J. Dolley — Mon, 13 Feb 2012 18:43:00 GMT

Phoenix, Arizona Overtime Law

The Law Offices of Kevin J. Dolley represents workers nationwide in claims for unpaid overtime compensation under the Fair Labor Standards Act (FLSA).

Introduction

In Baker v. D.A.R.A. II, Inc., 06-2887-PHX-LOA, 2008 WL 191995 (D. AZ Jan. 22, 2008), the United States District Court for the District of Arizona, located in Phoenix, Arizona, examined a case involving the alleged failure of an Arizona corporation and its owners (Defendants) to pay overtime wages to an employee (Plaintiff) as required under the FLSA. Defendant DARA II was an Arizona corporation that operated a network of group homes for disadvantaged children. Plaintiff worked for DARA, Inc. (DARA II's predecessor) and DARA II for a combined total of over 15 years. Plaintiff's employment duties included cooking, cleaning, doing laundry, preparing children for school and bed, administering medication, and engaging in general child care. The parties agreed that Plaintiff's position was not exempt from the overtime requirements of the FLSA.

Background and the Three Main Issues

Both Plaintiff and Defendants filed competing Motions for Summary Judgment. Plaintiff sought Summary Judgment on only the portion of Count I of her Complaint which sought unpaid overtime wages for the period from Nov. 30, 2003 to August 25, 2005. Defendants countered that Plaintiff was paid for all of the overtime she worked and disputed that they owed Plaintiff unpaid overtime. There were three main issues in front of the court in this case: 1) whether the Plaintiff was entitled to claim the three year statute of limitations under the FLSA; 2) the number of overtime hours Plaintiff worked in 2003 and 2004; and 3) the Plaintiff's regular rate of pay.

1. Plaintiff May Seek Damages Dating Back Three Years from December 30, 2006

The court found that, although the FLSA's usual statute of limitations lasts two years, Plaintiff could seek damages dating back three years from the filing of her Complaint on December 30, 2006. In order to receive the extension of the FLSA's normal two-year statute of limitations, the Plaintiff must present evidence demonstrating that the employer willfully violated the FLSA. A violation is willful if the employer either: 1) affirmatively knew its conduct violated the FLSA; or 2) recklessly disregarded whether its conduct violated the FLSA (citing Chao v. A-One Medical Services, Inc., 346 F.3d 908, 918 (9th Cir. 2003)). The court found that Plaintiff presented prima facie evidence that Defendants' violation was willful since Defendants violated the FLSA in 1998 and were ordered by the Department of Labor to pay unpaid overtime to several employees. Ninth Circuit precedent (mostly taken from the aforementioned Chao case) led the court to determine that Defendants' past "run-in" with the Department of Labor established a prima facie case that Defendants acted at least with reckless disregard for the FLSA's requirements.

2. Plaintiff worked 536 Hours of Overtime in 2005, but a Genuine Issue of Material Fact Exists Regarding the Number of Overtime Hours Plaintiff Worked in 2003 and 2004

Plaintiff presented timesheets showing she worked 536 hours of overtime in the year 2005. Plaintiff further stated she worked approximately the same amount of hours in 2003 and 2004 as she did in 2005 and 2006. Defendants no longer had Plaintiff's time sheets for 2003 and 2004 and did not submit any evidence to directly dispute Plaintiff's assertion. Although the Defendants admitted they no longer had Plaintiff's time sheets for 2003 and 2004 and did not submit any evidence to directly dispute Plaintiff's assertion that she worked the same amount of hours in 2003 and 2004 as she did in 2005, the court refused to make a determination as a matter of law that Plaintiff worked the same number of overtime hours in 2003 and 2004 based on her 2005 timesheets. Defendants disputed that Plaintiff worked the same number of hours in 2003 and 2004 as she did in 2005 and this was enough for the court to hold that there is a material issue of fact regarding the number of overtime hours Plaintiff worked in 2003 and 2004.

3. A Genuine Issue of Material Fact Exists Regarding Plaintiff's Regular Rate of Pay

The central issue in this case surrounded Plaintiff's rate of pay during the time period at issue (November 30, 2003 to August 25, 2005). Plaintiff relied on payroll registries created by Defendants' payroll vendor to support her assertion that she was paid a $1700 salary twice a month. Since under the FLSA an employee's total compensation is converted to an equivalent hourly rate to calculate the overtime rate, the court found that Plaintiff's overtime wage at a salary of $1700 per month would be $31.87 per hour (determined by dividing Plaintiff's alleged weekly salary by the 40 maximum hours in a work week, and multiplying the result by 1.5 to calculate time-and-a-half).

Defendants contend that even though Plaintiff was paid on salary, her regular rate of pay was actually $6 per hour. Defendants explained that while Plaintiff was paid a salary, a large portion of this $1700 bi-weekly salary comprised "overpayments" to Plaintiff given to her "out of good conscience and because they liked her." In support of this, Defendants cite that they kept Plaintiff in a non-full time "on call" position in 2004 and nearly all of 2005 and that Plaintiff's normal hourly wage was $6 per hour (meaning she would have been entitled to an overtime wage of $9 per hour). Defendants also asserted that Plaintiff's "shift pay" salary schedule (in which Plaintiff was paid regularly on salary at $1700 twice a month even when she allegedly did not work) was developed in response to the Department of Labor's 1998 investigation into DARA Inc.'s failure to pay employees overtime and that Plaintiff agreed to be paid on salary at a "normal hour" rate of $6 per hour when she signed a "Pay Scale and Job Description Acknowledgment."

The court determined that since the record contains evidence suggesting both that Plaintiff's regular rate of pay was $1700 twice a month and $6 per hour, a genuine issue of material fact exists regarding Plaintiff's regular rate of pay. The court held that determining Plaintiff's salary depends on credibility determinations which are for the finder of fact.

Conclusion

In sum, the court found that Plaintiff was not entitled to Summary Judgment on the portion of Count I of her complaint which sought overtime pay for the period from Nov. 30, 2003 to August 25, 2005 because material issues of fact existed regarding her regular rate of pay and whether she worked overtime hours for which she was not paid. Defendants' Cross-Motion for Summary Judgment was also denied since there are material issues of fact regarding Plaintiff's regular rate of pay and whether she was adequately compensated for overtime hours worked.