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Discrimination, Retaliation, Wrongful Termination, and Unpaid Wages

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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 ‘functions like a class action under Rule 23 in that it provides a judicial mechanism for the efficient resolution of the claims of multiple plaintiffs that involve common factual issues on the basis of representative proof.’ It is sufficient, then, that Plaintiff has put forward representative proof as to the liability of [Defendant] under the overtime violation claim.” 2016 WL 5122123, at *4 (citation omitted).

McDaniel v. Family Sleep Diagnostics, Inc., No. 3:13-CV-4031-KS, 2016 WL 5122123 (N.D. Tex. Sept. 20, 2016).

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 of the equipment she and other employees used during their employment at [Defendant] included goods and materials, such as polysomnography equipment and nasal airflow sensors, that were manufactured outside of the state of Texas and moved in the stream of interstate commerce. Based on this evidence, the Court will deny Defendants’ Motion for Summary Judgment.” 2016 WL 5122123, at *3-4 (emphasis in original).

McDaniel v. Family Sleep Diagnostics, Inc., No. 3:13-CV-4031-KS, 2016 WL 5122123 (N.D. Tex. Sept. 20, 2016).

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 Court finds Plaintiff’s allegations sufficient to survive a motion to dismiss.” 2016 WL 3745685, at *4 (citations omitted).

Ecoquij-Tzep v. Hawaiian Grill, No. 3:16-CV-00625-M, 2016 WL 3745685 (N.D. Tex. July 12, 2016).

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, 2014 through January 25, 2016, without receiving overtime pay. Those are factual allegations that give rise to a plausible claim for relief. They put Defendant on notice as to the relevant date range, as well as the approximate number of hours for which Plaintiff claims he was under-compensated, and the ‘FLSA does not require more.’ The Court therefore will not dismiss Plaintiff’s overtime claim for lack of specificity regarding the date ranges and number of hours for which Plaintiff claims he was under-compensated.” 2016 WL 3745685, at * 3 (citations omitted).

Ecoquij-Tzep v. Hawaiian Grill, No. 3:16-CV-00625-M, 2016 WL 3745685 (N.D. Tex. July 12, 2016).

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, the only document or evidence before the Court is the language of the Agreement itself, which Defendants contend clearly resolved a bona fide dispute because it includes broad, boilerplate language stating that [Plaintiff] has released all claims ‘arising under federal, state and local statutory or common law…’ and because [Plaintiff] acknowledged that ‘he is entitled to receive no other payments, benefits, or compensation’ from Defendants besides his $500 settlement . . . . Here, not only do Defendants allege no facts from which the Court could conclude that a bona fide dispute arose, was negotiated, and eventually was resolved regarding the number of hours [Plaintiff] worked or the pay he received, Defendants even admit that the Agreement in question is simply offered to workers who leave Southern Arch to shield the company from liability. As such, the Court cannot conclude based on the record before it that the Agreement signed by [Plaintiff] resolved a bona fide dispute regarding any FLSA claim that [Plaintiff] may bring, and as such, the Court will not dismiss [Plaintiff’s] claims in this matter.” 2016 WL 3617671, at *5 (footnotes omitted).

Lopez v. Southern Arch, LLC, No. 15-6302, 2016 WL 3617671 (E.D. La. July 6, 2016).

Allegations that an employer’s billing practices violated a federal criminal statute prohibiting healthcare fraud are sufficient to state a claim under Sabine Pilot.

Posted in Whistleblower claims, Wrongful termination

“In this case, the plaintiff’s averments regarding the defendant’s billing practices are criminal in nature. For example, the plaintiff’s original complaint alleges that ‘BCH began requesting that the Plaintiff see multiple patients at the same time, bill units in empty time slots, and bill incorrectly. However, Plaintiff refused….’ Such practice could subject individuals to criminal prosecution for health care fraud under 18 U.S.C. § 1347. The Court recognizes that a question remains regarding whether the plaintiff was discharged solely because of his refusal. However, at this stage of the proceedings, the Court is charged to resolve any factual conflicts in favor of the plaintiff. Accordingly, the Court denies the defendants’ motion to dismiss the plaintiff’s wrongful termination claim.” 2016 WL 3418852, at *7 (citation omitted).

Haynes v. Breathing Center of Houston, No. 4:15-CV-02569, 2016 WL 3418852 (S.D. Tex. June 21, 2016).

An employee who can perform the essential functions of her job with the use of a cane is a qualified individual under the Americans with Disabilities Act.

Posted in FMLA violations

“A ‘qualified individual’ means ‘an individual who, with or without reasonable accommodations, can perform the essential functions of the employment position that such individual holds or desires.’ In Plaintiff’s Third Amended and Restated Complaint, Plaintiff adds the allegation that she ‘required the cane to perform the tasks within the course and scope of employment at Defendant’s facility.’ Taking this allegation as true in a light most favorable to Plaintiff, a plausible inference could be made that Plaintiff could perform her essential job functions with the accommodation of a cane but Defendant did not wish to make such accommodations.” 2016 WL 3407764, at *3 (citations omitted).

Mitchell v. Universal Health Servs., Inc., No. 15-5963, 2016 WL 3407764 (E.D. La. June 21, 2016).

An employee is disabled under the Americans with Disabilities Act if she requires a cane to perform her job.

Posted in Disability discrimination

“In Plaintiff’s Third Amended and Restated Complaint, Plaintiff adds the allegation that she ‘required the cane to perform the tasks within the course and scope of employment at Defendant’s facility.’ Thus, unlike the complaint in Mora, Plaintiff is specifically alleging that she suffered from an impairment to a major life activity by requiring a cane to perform the tasks required by her employer. The ADA specifically defines ‘major life activities’ by giving an illustrative, non-exhaustive list of activities deemed ‘major life activities’ including ‘manual tasks…standing…[and] walking.’” 2016 WL 3407764, at *2 (citations omitted).

Mitchell v. Universal Health Servs., Inc., No. 15-5963, 2016 WL 3407764 (E.D. La. June 21, 2016).

A jury trial waiver is unenforceable if an employee has disproportionate bargaining power compared to his employer, has no opportunity to negotiate the provision, is not represented by counsel, and has no business experience, even though the waiver is bolded, in all-caps, underlined, and appears just above where the employee signed.

Posted in Employment Contracts

“As a pharmacy technician for a large corporate entity, plaintiff had virtual no ability to exert influence over her employer. For instance, all the terms of her employment were laid out unilaterally in an employee handbook published by her employer. For similar reasons, the court also finds plaintiff had no opportunity to negotiate the terms of her contract . . . . Although plaintiff began her employment with Fred’s Stores on August 20th, 2014, plaintiff did not receive or otherwise sign a handbook statement until October 28th, 2014. Therefore, the terms to which she ‘voluntarily’ and ‘knowingly’ agreed to by signing the handbook statement were not likely dickered before her employment commenced. Rather, it appears she was left with the unsavory decision of either agreeing to the employer’s terms post hoc or facing possible termination. There is also no evidence plaintiff had any prior business or professional experience that could have informed her decision when signing the waiver. Nor was she represented by counsel when she signed away her rights to a jury trial. Therefore, the only sophisticated party to this transaction was her employer.” 2016 WL 3265451, at *2. (footnotes omitted).

Lenoir v. Fred’s Stores of Tenn., Inc., No. 1:15CV214-SA-DAS, 2016 WL 3265451 (N.D. Miss. June 14, 2016).

Evidence that a plaintiff worked offsite and from home via telecommunication to the employer’s corporate office which has more than 50 employees raises a genuine dispute of material fact as to whether she is an eligible employee under the Family and Medical Leave Act.

Posted in FMLA violations

“The plaintiff attested that, as a Technical Support Specialist, she worked offsite and from home through telecommunication and reported to the Tampa, Florida corporate office, which has more than 50 employees . . . . Here, the plaintiff provides sufficient evidence to support her claim that she is an eligible employee under the FMLA. Because the plaintiff has shown that there is a genuine dispute concerning a material fact with respect to her eligible employment status, the Court finds summary judgment dismissing her FMLA claim inappropriate.” 2016 WL 3275437, at *6. (citations omitted).

Donahoe-Bohne v. Brinkmann Instruments, No. 16-2766, 2016 WL 3275437 (E.D. La. June 15, 2016).