Larson v. FGX International, Inc.
Filing
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MEMORANDUM AND ORDER granting in part 24 defendant's Motion to Dismiss. Count II is dismissed. Signed by Chief Judge J. Thomas Marten on 3/10/15. (mss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KRYSTAL LARSON,
On behalf of herself
and all others similarly situated,
Plaintiff,
v.
Case No. 14-2277-JTM
FGX INTERNATIONAL, INC.,
Defendant.
MEMORANDUM AND ORDER
This case arises out of the alleged unpaid minimum and overtime wages to
plaintiff Krystal Larson and other similarly situated FGX employees. Plaintiff alleges
violations of the Fair Labor Standards Act (“FLSA”), the Kansas Wage Payment Act
(“KWPA”), and the Missouri Minimum Wage Maximum Hour Law (“MMWMHL”).
Before the court is defendant FGX International, Inc.’s Motion to Dismiss (Dkt. 24).
I. Background
Plaintiff is a “Merchandiser” employed by defendant to collect and record
product placement and inventory information from retail stores. Merchandisers drive to
multiple retail stores each day, using their own vehicles. Plaintiff alleges that defendant
inadequately reimburses Merchandisers for transportation and other work-related
expenses. She further alleges the unreimbursed expenses, when debited from a
Merchandiser’s wage, yield earnings below minimum wage and without overtime pay.
Plaintiff filed her first Amended Complaint, with leave of the court, on
September 22, 2014. (Dkt. 16). The Amended Complaint alleges three counts: Count I:
FLSA minimum wage and overtime violations, pursuant to 29 U.S.C. §§ 206(a) and
207(a)(1); Count II: KWPA minimum wage and overtime violations; as provided by the
FLSA; and Count III: MMWMHL minimum wage & overtime violations. Plaintiff seeks
an opt-in collective action for Count I, pursuant to 29 U.S.C. § 216(b), and class actions
for Counts II and III pursuant to FED. R. CIV. P. 23(b)(2) and (3).
Defendant moves to dismiss plaintiff’s Count II KWPA claims pursuant to FED.
R. CIV. P. 12(b)(6).
II. Legal Standard
A party may move to dismiss a complaint for “failure to state a claim upon
which relief can be granted.” FED. R. CIV. P. 12(b)(6). When ruling on a 12(b)(6) motions,
the court must determine whether the complaint alleges “sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal citations and quotations omitted). The complaint must
contain more than “labels and conclusions” or a “formulaic recitation of the elements of
a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations
must be sufficient to “raise a right to relief above the speculative level.” Id. “While the
12(b)(6) standard does not require that [a] [p]laintiff establish a prima facie case in [his]
complaint, the elements of each alleged cause of action help to determine whether [the]
[p]laintiff has set forth a plausible claim.” Khalik v. United Air Lines, 671 F.3d 1188, 1192
(10th Cir.2012).
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III. Analysis
Defendant argues that plaintiff’s KWPA claims fail to state a claim upon which
relief can be granted. The plausibility of plaintiff’s KWPA claim turns on the interplay
of the KWPA, the Kansas Minimum Wage Maximum Hour Law (“KMWMHL”), and
the FLSA. The court finds that, under Kansas law, a state law claim paralleling FLSA
overtime or minimum wage claims is not sustainable.
Defendant relies on decisions from this court to argue that Rule 23 claims for
minimum wage and overtime violations brought under the KWPA must be dismissed
because the same claims are asserted under the FLSA. (Dkt. 25, at 6-10) (citing Wheaton
v. Hinz JJ, LLC, No. 14-2223-RDR, 2014 WL 5311310, at *1-2 (D. Kan. Oct. 16, 2014);
Spears v. Mid-America Waffles, Inc., No. 11-2273-CM, 2011 WL 6304126, at *4-5 (D. Kan.
Dec. 16, 2011); Garcia v. Tyson Foods, Inc., 799 F. Supp. 2d 1167, 1187 (D. Kan. 2011)).
Plaintiff also relies on cases from this court, guided by Elkins v. Showcase, Inc., 704
P.2d 977 (Kan. 1985), to argue that FLSA-based claims may be brought through the
KWPA as alternative claims to actual FLSA claims. (Dkt. 28, at 4-9) (citing Tarcha v.
Rockhurst Univ. Continuing Educ. Ctr., Inc., No. 11-2487-KHV, 2012 WL 1998782, at *4 (D.
Kan. June 4, 2012); Rukavitsyn v. Sokolov Dental Labs., Inc., No. 12-2253-JAR, 2012 WL
3066578, at *4 (D. Kan. July 27, 2012); Garcia, 799 F. Supp. 2d at 1187).
A. FLSA Minimum Wage and Overtime Claims Are Improper Under the KWPA
“The KWPA gives employees the right to receive their ‘wages due’ and concerns
when and how those wages are paid out.” Garcia, 766 F. Supp. 2d at 1187 (citing K.S.A. §
44-314). The KWPA does not provide any substantive rights, and is therefore only a
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mechanism for recovery of “wages due.” See K.S.A. §§ 44-312 to 44-327. The KWPA thus
provides a very general state-law mechanism for enforcing the payment of wages
earned by employees. The Kansas Supreme Court recently provided helpful insight into
the nature of the KWPA1:
The KWPA is an expansive and comprehensive legislative scheme that is
broad in its scope and the rights created for Kansas workers to secure
unpaid wages earned from their labors. It was enacted in 1973 and
primarily sought to address problems being encountered by employees of
small businesses. The KWPA's primary concern was to protect low income
workers who were shorted, docked, or cheated out of pay for services
performed. A goal of the legislation was to protect Kansas employees who
were not then covered by the Fair Labor Standards Act (FLSA), minimum
wage requirements, or the National Labor Relations Board.
The KWPA controls several aspects of wages and benefits for the
Kansas worker that are not covered by the Fair Labor Standards Act of
1938, 29 U.S.C. § 201 (2012) et seq. The KWPA governs when wages must
be paid, the manner in which they must be paid, and the circumstances in
which wages can be withheld. The KWPA also requires employers to
provide certain notice requirements with respect to the payment of wages
and the provision of benefits. It provides for remedies and penalties for
violation of its requirements. Notably, the KWPA does not contain any
express provision relating to the payment of overtime, which is typically
pursued under a FLSA claim.
Craig v. FedEx Ground Package Sys., Inc., 335 P.3d 66, 73 (Kan. 2014) (internal quotations
and citations omitted). The Kansas Supreme Court thus acknowledged that the KWPA
is not the usual mechanism for overtime – and presumably minimum wage – claims
under Kansas law.
The substantive provisions of Kansas state minimum wage and overtime law are
found in the KMWMHL. See K.S.A. §§ 44-1201 to 44-1213. The KMWMHL “is the state
While the question addressed in Craig was unrelated to the question now before the court, the
Kansas Supreme Court’s explanation of the KWPA is applicable here.
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counterpart to the federal Fair Labor Standards Act . . . .” Dollison v. Osborne Cnty., 737
P.2d 43, 48 (Kan. 1987). Under Kansas law, non-FLSA overtime and minimum wage
claims are brought through the KMWMHL.2 K.S.A. §§ 44-1201 to 1213. The KMWMHL
does not apply to FLSA-covered employers. K.S.A. § 44-1202(d). Thus, Kansas has no
substantive minimum wage or maximum hour law that covers FLSA employers – it
relies on the FLSA.
The FLSA provides causes of action for minimum wage and overtime claims. 29
U.S.C. §§ 206 and 207. As a general rule, state law claims attempting to assert causes of
action expressly provided for by federal statute are preempted. Conner v. Schnuck
Markets, Inc., 121 F.3d 1390, 1399 (10th Cir. 1997); Hammond v. Lowe’s Home Ctrs., Inc.,
316 F. Supp. 2d 975, 979 (D. Kan. 2004) (“As a general proposition, state law claims that
merely seek to enforce the defined remedies of the FLSA are preempted.”). Thus, to the
extent that the KWPA could be interpreted as a mechanism for asserting FLSA-based
claims for minimum or overtime wages, it would be preempted by §§ 206 and 207 of the
FLSA. That is because any attempt to bring minimum wage or overtime claims against
FLSA employers through the KWPA mechanism can only be an attempt to assert the
remedies found in §§ 206 and 207 of the FLSA. The KWPA is therefore not a proper
mechanism for asserting such claims. It is possible that, as in Elkins, some other FLSAderived federal employment right may be enforceable through the KWPA. However,
Notably, the court has not located Kansas cases where KMWMHL claims were brought
through the KWPA; neither have the parties provided such authority.
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minimum wage and overtime causes of action provided by the FLSA cannot be brought
through the KWPA.
Here, plaintiff alleges that defendant is an FLSA employer. Therefore, under
Kansas law, her KWPA claims for FLSA minimum wage and overtime violations are
not plausible because they are legally impossible. To allow otherwise would be
incompatible with Kansas’s statutory wage and hour scheme. Plaintiff may proceed
with a proposed combined action of an FLSA opt-in class for minimum wage and
overtime claims and a Rule 23(b) opt-out class for all other unpaid wages under the
KWPA – including non-minimum wage or overtime FLSA-defined wages earned.
However, Plaintiff’s Count II, styled as “KWPA Minimum Wage & Overtime
Claim,” alleges only FLSA-derived minimum wage and overtime violations. (Dkt. 16, at
26). It does not allege that any other FLSA-derived rights were violated. Therefore,
Count II is dismissed for failure to state a claim upon which relief can be granted.
The court notes that the decision of this court cited by plaintiff did not have the
benefit of Craig to clarify the nature of the KWPA. Furthermore, the cases cited by
defendant apply reason that comports with this ruling.
IT IS ACCORDINGLY ORDERED this 10th day of March, 2015, that defendant’s
Motion (Dkt. 24) is GRANTED IN PART to the extent that Count II is DISMISSED.
s\ J. Thomas Marten
J. THOMAS MARTEN, JUDGE
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