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Category Archives: FLSA violations

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In a collective FLSA action, an employee’s testimony that they worked overtime voluntarily and were satisfied with their pay does not create a genuine dispute of material fact when other employees were indisputably denied overtime wages.

Posted in FLSA violations
“[The] declarations and timesheets [produced by Plaintiff] establish that there were weeks in which [Defendant’s] employees worked more than forty hours, and [two employees] both state in their declarations that they were not paid an overtime rate for this work. . . . [N]othing in [another employee’s] declaration refutes Plaintiff’s claim that employees often worked… Continue Reading

To win summary judgment on the issue of whether overtime requirements were violated, the plaintiff in a certified collective FLSA action only has to show that some employees have claims, not necessarily all employees or even themselves.

Posted in FLSA violations
“The only other argument Defendants make as to this issue is to point out that the evidence presented by Plaintiff only speaks to the overtime claims of [two other employees], and does not establish the claims of Plaintiff herself or the other employees she represents in the collective action. . . . Such a collective action… Continue Reading

Employees’ use of goods and materials produced outside the state as part of their jobs creates a a genuine dispute of material fact whether their employer is an “enterprise engaged in interstate commerce” under the FLSA.

Posted in FLSA violations
“Therefore, because Defendants have pointed only to her lack of evidence, to defeat summary judgment, Plaintiff must adduce evidence that goods or materials she or the collective plaintiffs she represents handled or worked on during their employment with [Defendant] moved in or were produced for interstate commerce. [Plaintiff] has put forward evidence to show that some… Continue Reading

Allegations that an employer knew about the FLSA’s pay requirements and recklessly failed to investigate whether its wage practices complied with the FLSA are sufficient to state a claim that an employer’s violation of the FLSA was willful.

Posted in FLSA violations
A violation is willful if the employer ‘either knew or showed reckless disregard for…whether its conduct was prohibited by the statute.’ Plaintiff claims Defendant acted willfully and intentionally because Defendant knew of the FLSA’s minimum wage and overtime requirements, yet ‘recklessly failed to investigate’ whether its payroll practices were in accordance with the FLSA. The… Continue Reading

Allegations that an employee worked an average of 70 hours per week over a nearly fourteen-month period are sufficient to state a claim for unpaid overtime wages under the FLSA.

Posted in FLSA violations
“Defendant also argues the Complaint should be dismissed because it does not identify a week during which Plaintiff worked more than forty hours and was not properly compensated for overtime. The Court finds that Plaintiff has adequately pleaded his overtime claim. He alleged that he worked on average seventy hours per week from December 3,… Continue Reading

A severance agreement that does not mention of overtime claims, hours, or wage amounts, does not compute alleged overtime hours worked to which the release applies, and does not refer to any dispute about overtime wages is not an enforceable release of FLSA rights.

Posted in FLSA violations, Severance agreements
“When evaluating whether settlements purporting to waive or release claims pursuant to the FLSA may be enforced, courts look to evidence in the records before them to see whether the settlements resolved ‘bona fide disputes’ regarding the number of allegedly unpaid hours or compensation due at the time that payment was received. By contrast, here,… Continue Reading

Because the FLSA mandates the award of reasonable attorney’s fees, a district court must make a finding on the reasonableness of the attorney’s fees before declining to award them.

Posted in FLSA violations
“Citing 29 U.S.C. § 216(b), this court has held that ‘[r]easonable attorney’s fees are mandatory’ when a court finds that an employer has violated § 206.20. Section 216(b) also requires the district court to order the defendant to pay the costs of the action. Although the district court has discretion to determine what is reasonable,… Continue Reading

The cost of cash deliveries used to pay out credit card tips are incidental and discretionary expenses that cannot be deducted from an employee’s tips for an employer to take advantage of the tip credit under the Fair Labor Standards Act.

Posted in FLSA violations
“Unlike credit card issuer fees, which every employer accepting credit card tips must pay, the cost of cash delivery three times a week is an indirect and discretionary cost associated with accepting credit card tips. As the district court noted, this cash delivery was “a business decision, not a fee directly attributable to its cost… Continue Reading

Plaintiffs may be conditionally certified if they have a similar pay scheme despite having different jobs

Posted in FLSA violations
Defendant contended that “the facts of this case are “unsuited for resolution via the FLSA’s collective action mechanism” because of the differences in the individual work and pay histories as well as the fact that each class member must show that Dauterive managers had actual or constructive knowledge that overtime qualifying work was being performed… Continue Reading

An employer that works in several cities and countries and is in the shipping industry is an enterprise engaged in commerce under the FLSA.

Posted in FLSA violations
“‘Commerce’ means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.’ Plaintiff’s complaint alleges that Defendant itself has offices in four states and five countries. In addition, PetroMar’s business involves shipping in the oil and maritime industry, and its employees were sent to work on… Continue Reading

Alleging that an employee regularly worked over forty hours per workweek and was not paid time-and-a-half is sufficient to give rise to a plausible claim for relief under the FLSA.

Posted in FLSA violations
“Defendant suggests that Plaintiff’s complaint fails because he does not allege the total amount of unpaid wages that he deserves.  An FLSA plaintiff is not, however, required to plead the precise amount of unpaid wages to which he is allegedly entitled.” Murphy v. Multi-Shot, LLC, 2014 WL 4471538, at *2 (S.D. Tex. Sep. 10, 2014)… Continue Reading

An independent contractor may be considered an “employee” for purposes of analyzing a Title VII claim when several factors are considered.

Posted in FLSA violations
“Plaintiff alleges that the workers are ‘hourly employees’ who ‘supply no materials or tools of their own’ and ‘are directly supervised, directed and controlled by [Owner] and [Supervisor].  These allegations, taken as true, are sufficient to overcome the instant motion to dismiss.” Stewart v. Caton, 2013 WL 4459981, at *9 (E.D. La. Aug. 13, 2013)… Continue Reading

Allegation that bonuses were non-discretionary, but not included in the calculation of overtime is sufficient to certify a class.

Posted in FLSA violations
“At this stage, should Plaintiffs prevail on their argument that the bonuses were non discretionary and overtime wages were improperly calculated, this finding would be applicable to a class of all operators or riggers.” Wilson v. Anderson Perforating, Ltd., 2013 WL 3356046 at *2 (W.D. Tex. July 3, 2013) (Rodriguez, J.).… Continue Reading

Statements made outside the statute of limitations concerning overtime pay are probative of conduct occurring within the limitations period.

Posted in FLSA violations
“Defendant appears to blur the distinction between incidents that may not be considered for purposes of establishing liability for damages, because they occurred outside the limitations period, and what nevertheless may be admissible and probative as background evidence to support a claim based on alleged conduct that falls within the limitations period.” Arnett v. Sears,… Continue Reading

Where employer prevents reporting of overtime work or knows of unreported work, plaintiff does not have to use company’s time correction process before filing suit.

Posted in FLSA violations
“White clearly stands for the proposition that where an employer prevents its employee from reporting overtime or was otherwise on notice of the employee’s unreported work, an employee may recover damages under the FLSA, regardless of whether the employee exhausted any internal company grievance policy or time correction policy.” Arnett v. Sears, Roebuck and Co.,… Continue Reading

Plaintiff’s testimony alone that he told his supervisor he was under-reporting his time creates fact issue as to whether employer was on notice that employee was not receiving proper overtime compensation in a FLSA claim.

Posted in FLSA violations
“[P]laintiff argues that one or two times in 2007, he told his former supervisor (Bob Perkins) hat he was not reporting all of his time and that Mr. Perkins understood and acknowledged he knew of the under-reporting.” Arnett v. Sears, Roebuck and Co., 2013 WL 3324070 at *2 (W.D. Tex. July 1, 2013) (Rodriguez, J.).… Continue Reading

When an employee successfully asserts an FLSA claim against an employer, courts may properly consider attorney’s fees in determining the amount in controversy.

Posted in FLSA violations
“As for the allegation that Defendants willfully violated the FLSA, that matter contains questions of fact, and at this pleading stage prior to discovery the motion to dismiss it is premature.” Adkins v. United Airlines, Inc., 2014 WL 803460 at *2 (N.D. Tex. February 28, 2014) (Lynn, J.).… Continue Reading

To defeat a motion to dismiss, an employee is not required to plead evidence of willfulness; rather an employee may simply state that the FLSA violation was willful.

Posted in FLSA violations
“As for the allegation that Defendants willfully violated the FLSA, that matter contains questions of fact, and at this pleading stage prior to discovery the motion to dismiss it is premature.” Craven v. Excel Staffing Service, Inc., H-12-2860, 2014 WL 345682 at *6-7 (S.D. Tex. January 30, 2014) (Harmon, J.) (internal citations omitted).… Continue Reading

An employee may defeat a Twombly motion to dismiss by pleading that he is a nonexempt employee that worked in excess of forty hours per week and was not paid one and a half times his regular rate of pay for overtime hours worked.

Posted in FLSA violations, Overtime claims
“Plaintiffs’ allegations that they were nonexempt, regularly worked more than forty hours per week, and were not paid time-and-a-half to be factual allegations and not legal conclusions.” Rodriguez v. Gold & Silver Buyers, Inc., Civ. A. No. 4:12–CV–1831, 2013 WL 5372529 at *3 (S.D.Tex. Sept.24, 2013) (Harmon, J.).… Continue Reading

A plaintiff may demonstrate that there is a reasonable basis for crediting the assertion that the aggrieved individuals are similarly situated for the purpose of conditional certification where one former employee files a Notice of Consent to opt in after the plaintiff files his motion for certification.

Posted in FLSA violations, Overtime claims
“The Court finds that [the employee] meets his burden to establish that he is similarly situated to other employees in the proposed class.  In his declaration, [the employee] states that he was required to work approximately seventy-three hours per week and was paid a flat rate of $145 per day.  He did not receive overtime… Continue Reading

General claims of working over forty hours per workweek with no overtime pay are sufficient to defeat motion to dismiss FLSA action because Plaintiff is not required to state facts showing he is non-exempt.

Posted in FLSA violations
“The Plaintiff’s assertions that he worked over forty hours in a work week and was not paid overtime or minimum wage are not legal conclusions, but rather factual allegations that if proven give rise to a plausible claim for relief.” Holland v. Wright, No. 1:13-cv-16, 2013 WL 5290658 at *3 (E.D. Tex. September 19, 2013)… Continue Reading

Trucks manufactured out-of-state that are used to transport patients purely within the state are “materials” under FLSA, which bestows FLSA coverage on the employer.

Posted in FLSA violations
RULE:  Trucks manufactured out-of-state that are used to transport patients purely within the state are “materials” under FLSA, which bestows FLSA coverage on the employer. “Accordingly, the vehicles used in the performance of transporting non-emergency patients to appointments in the course of Defendants’ business are “materials,” i.e., those vehicles are necessary for transporting those patients… Continue Reading

Partial ownership combined with express dealings with payroll create fact issue as to whether person is an employer under FLSA.

Posted in FLSA violations
RULE: Partial ownership combined with express dealings with payroll create fact issue as to whether person is an employer under FLSA. “However, considering her part ownership of the business, as well as her express dealings with the payroll, the Court finds that the evidence creates a genuine dispute of material fact as to whether she… Continue Reading