Adams et al v. Nature's Expressions Landscaping, Inc.
MEMORANDUM OPINION & ORDER: (1) Dft's 39 MOTION for Summary Judgment as to Dimitri Roskolov is DENIED. Pla may substitute William Austin for Roskolov in this collective action. (2) Dft's Motion for Summary Judgment, or in the alternat ive Decertification, as to Harry Sussman, Andy Dwyer and Christopher Becknell is DENIED. (3) Dft's Motion for Summary Judgment as to Patrick Johnson and Mark Comley is GRANTED. (4) Dft's Motion for Summary Judgment or, in the alternative De certification, as to Joseph Sams is DENIED AS MOOT. (5) Dft's Motion for Summary Judgment or, in the alternative Decertification, as to Justin Sanchez, Jeremy Thompson and Elijah Gawthorp is DENIED. Signed by Judge Joseph M. Hood on October 25, 2017. (AWD) cc: COR
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fUNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
THOMAS ADAMS, et al.,
Civil Case No.
When employees work more than forty hours in a week, they
expect overtime pay.
Under the Fair Labor Standards Act (“FLSA”),
employees working these hours are entitled to time-and-a-half,
unless the Act exempts them.
Employees at Nature’s Expressions
Landscaping, Inc. (“NEL”) claim they have worked more than forty
hours per week.
They are not exempt from the FLSA.
want their overtime pay.
And now they
So they have filed a collective action
in this Court asking for their money.
But NEL argues it owes nothing.
Some Plaintiffs, according
to NEL, never worked for the company.
Others work under contracts
specifically spelling out overtime and straight time pay. In fact,
NEL claims the company compensates some employees above what the
These employees, NEL argues, do not understand how
their own wages are calculated.
And finally NEL argues that some
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employees trying to join this action simply filed too late.
Decertification of four groups of plaintiffs.
responded [DE 43], and Defendant filed a reply [DE 45] making the
matter ripe for review.
For the reasons stated herein, Defendant’s Motion for Partial
Summary Judgment is GRANTED IN PART, DENIED IN PART, and DENIED IN
PART AS MOOT. Defendant’s motion for Decertification is DENIED.
II. FACTUAL AND PROCEDURAL BACKGROUND
Steven Atwood, Charles Cook, John Heska, and Ron Stewart filed
this action on March 30, 2016 seeking unpaid overtime wages under
architecture firm that “creates and constructs outdoor living
spaces for clients throughout central Kentucky.” [DE 1-1 at p. 78, ¶17].
NEL pays employees a set rate per day. [Id. at p. 8,
Plaintiffs allege that this compensation scheme violates
the FLSA because it does not account for overtime hours. [Id. at
As the Plaintiffs describe it, NEL assigns each employee a
daily wage based on his position and duties. [Id. at p. 8-9, ¶20].
Each employee is required to work a certain number of hours per
day, which is divided into “quarter days.” [Id. at p. 9, ¶22].
NEL tracks the number of hours worked by each employee, and then
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rounds that number to the nearest quarter day. [Id.].
the employee the sum equal to the employee’s agreed upon day rate,
prorated by quarter days worked. [Id.].
For example, NEL might
require an employee to work ten hours per day and pay that employee
$160 per day, based on the ten hours of work. [Id. at p. 10, ¶23].
But on any given day, if that employee works only 7.5 hours, his $160
per day would be prorated to three-fourths of the total daily rate.
Plaintiffs claim NEL uses this method for all work, even
if employees work more than 40 hours in a week. [Id. at p. 12,
Put simply, Plaintiffs claim NEL is not paying time-and-ahalf for overtime.
Plaintiffs have suspected as much since early
2016, when Ron Stewart and Steven Atwood filed administrative
complaints with the Kentucky Labor Cabinet (“KLC”) seeking unpaid
overtime wages. [Id. at p. 15, ¶36].
The KLC began investigating
complaints, the investigation remains pending, but its status is
unknown. [DE 1-1 at p. 15; 24].
A short time after filing with the KLC, Stewart and Atwood,
along with the other named Plaintiffs, filed this action in
Jessamine Circuit Court seeking overtime wages under the FLSA. [DE
Plaintiffs also filed retaliation claims under the FLSA and
state-law claims under the Kentucky Work and Hour Act (“KWHA”).
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NEL promptly removed the case to this Court on the basis
of federal question and supplemental jurisdiction. [DE 1].
After the Defendant filed its Answer, the Plaintiffs moved
pursuant 29 U.S.C. § 216(b) to conditionally certify this case as
a collective action. [DE 14].
Under that provision of the FLSA,
similarly situated plaintiffs may bring their cases together as a
collective. 29 U.S.C. § 216(b).
The Court granted Plaintiffs’ motion in a November 1, 2016
Plaintiffs’ proposed notice and opt-in consent forms. These forms
individuals currently or formerly employed by NEL who, within the
three-year period preceding the date of this Court’s certification
Order, were compensated under the ‘day-rate’ scheme, as that term
is described in Plaintiffs’ Complaint, and who worked hours in
excess of forty (40) during any week throughout the course of their
employment.” [DE 22 at p. 10].
This group had ninety days to fill
out the paperwork and join the class. [Id. at p. 11].
consent forms would be “deemed to have been filed with the Court
the date that they are stamped as received.” [Id.].
was set for February 12, 2017. [DE 28-1]. Since that Order issued,
many current or former NEL employees have completed and submitted
opt-in forms. [DE 27; 28; 29; 30; 31; 32].
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NEL argues that several opt-in Plaintiffs either do not meet
the criteria to join this collective action or simply do not have
Plaintiffs and not the original Plaintiffs already conditionally
certified. [DE 26].
Defendant groups these opt-in Plaintiffs into
four categories: (1) persons who never worked for Defendant NEL;
(2) persons who opted in to the lawsuit after the expiration of
the opt-in period; (3) persons who never worked more than 40 hours
agreements state NEL’s policy of straight time and overtime pay.
[DE 39; 45].
The Court will discuss each group of Plaintiffs and the
parties’ arguments in turn.
III. STANDARD OF REVIEW
A. Summary Judgment
Summary Judgment is appropriate when no genuine dispute as
to any material fact exists and the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a).
To prevail on summary
judgment, the moving party must show “that there is an absence of
evidence to support the nonmoving party’s case.” Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986).
A genuine issue of material
fact exists only if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby Inc., 477 U.S. 242, 248 (1986).
Thus, the Court
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considers “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Id. at 251—52.
In considering a summary judgment motion, the Court must
construe the facts in the light most favorable to the nonmoving
party. Anderson, 477 U.S. at 255.
Once the moving party has met
its burden of production, the nonmoving party must “go beyond the
pleadings” through the use of affidavits, depositions, answers to
interrogatories and admissions on file, and designate specific
facts showing that there is a genuine issue for trial. Celotex,
477 U.S. at 323-24.
A mere scintilla of evidence is insufficient;
“there must be evidence on which the jury could reasonably find
for the [nonmovant].” Anderson, 477 U.S. at 252.
“[T]he FLSA authorizes collective actions by any one or more
employees for and on behalf of himself or themselves and other
employees similarly situated.” Monroe v. FTS USA, LLC, 860 F.3d
389, 397 (6th Cir. 2017)(quoting 29 U.S.C. § 216(b)).
situated employees may “opt-into” such suits by “signal[ing] in
writing their affirmative consent to participate in the action.”
Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006).
“The FLA does not define the term ‘similarly situated.’” Tassy
v. Lindsay Entm’t Enter. Inc., NO. 3:16-CV-00077-TBR, 2017 WL
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cases.” Monroe, 860 F.3d at 397. “At the notice stage, conditional
certification may be given along with judicial authorization to
notify similarly situated employees of the action.” Id.
certification is “by no means final.” Comer, 454 F.3d at 546-47.
“The plaintiff must show only that his position is similar, not
identical, to the positions held by the putative class members.”
Id. (internal quotations omitted).
“[T]his determination is made
(stating further that “authorization of notice need only be based
on a modest factual showing”) (internal quotations omitted).
“Once discovery has concluded, the district court — with more
information on which to base its decision and thus under a more
exacting standard — looks more closely at whether the members of
the class are similarly situated.”
Monroe, 860 F.3d at 397.
final-certification decision depends upon “a variety of factors,
including the factual and employment settings of the individual
plaintiffs, the different defenses to which the plaintiffs may be
subject on an individual basis, [and] the degree of fairness and
procedural impact of certifying the action as a collective action.”
O’Brien v. Ed Donnelly Enter., Inc., 575 F.3d 567, 584 (6th Cir.
2009) (internal quotations omitted), overruled on other grounds by
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016).
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oppressive working hours.’”
Christopher v. SmithKline Beecham
Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981)); see
also 29 U.S.C. § 202(a). Overtime pay makes up a critical aspect
of the FLSA. 29 U.S.C. §207(a). This “obligates employers to
compensate employees for hours in excess of 40 hours per week at
a rate of 1 ½ times the employees’ regular wages.” Christopher,
132 S. Ct. at 2162. Employees can enforce this requirement through
a collective action, which authorizes employees to sue on their
own behalf and for all similarly situated persons. 29 U.S.C. §
A. Group One: Employee Who Never Worked for NEL
No one named Dimitri Roskolov ever worked for NEL. [[DE 39 at
Plaintiffs’ counsel admits as much. [DE 43 at p. 4].
Indeed, Roskolov could not have worked at NEL because he does not
exist. [DE 39 at p. 4; 43 at p. 4].
Yet, Plaintiffs’ counsel
listed a “Dimitri Roskolov” as an opt-in Plaintiff to this lawsuit.
Defendant claims that because the parties agree that
a Roskolov never worked for NEL, no genuine issue of material fact
exists as to his claims. [DE 39].
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Plaintiffs’ counsel attributes the mix up to an illegible
signature and an unfortunately named e-mail address. [DE 43 at p.
William “Chad” Austin is the real person who signed the
consent form on November 16, 2016. [Id.]. When Plaintiffs’ counsel
received the form, the form did not include a printed name. [Id.].
The signature was illegible. [Id.].
But the e-mail address
provided included the name “Dimitri Roskolov.” [Id.].
counsel assumed the sender’s name was, in fact, Dimitri Roskolov.
It was not.
Even if the Court were inclined to grant Defendant’s Motion,
doing so would have no effect on Austin’s legitimate claim.
allowing Austin to join this collective action does not prejudice
NEL since Austin could file a new lawsuit himself.
not engage in any tactical maneuvering to NEL’s disadvantage.
Austin – the real party in interest – returned a timely and proper
The Court sees no reason to punish Austin for a
mistake that has since been corrected.
Defendant’s Motion for Summary Judgment as to the claims of
Dimitri Roskolov are DENEID. Plaintiffs will be permitted to
substitute William “Chad” Austin for Roskolov in this collective
B. Group Two: Persons Who Opted in to the Action after the
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“The FLSA provides the procedure for potential plaintiffs to
opt-in to a collective action, but does not specify when the
Corp., No. 3:13-cv-01374, 2015 WL 2367155, at *1 (M.D. Tenn. May
18, 2015)(quoting Kimbrel v. D.E.A. Corp., No. 3:14-cv-161-TAVCCS, 2015 WL 1396898, at *2 (E.D. Tenn. Mar. 26, 2015)).
court sets opt-in deadlines. Heaps v. Safelite Solutions LLC, NO.
2:1—cv-729, 2011 WL 6749053, at *1 (S.D. Ohio Dec. 22, 2011).
FLSA “does not ‘provide a standard under which a court should
consider whether to include opt-in plaintiffs whose consent forms
are filed after the court-imposed deadline has passed.’” Id.
(quoting Ruggles v. Wellpoint, Inc., 687 F. Supp. 2d 30, 37
But district courts “ha[ve] authority to allow
late opt-ins.” Hurt v. Commerce Energy, Inc., No. 1:12-CV-758,
2014 WL 49571, at *1 (N.D. Ohio Feb. 6, 2014).
Courts use a five-factor test to determine whether to allow
untimely opt-ins. See, e.g., Lykins, 2015 WL 2367155, at *1. These
submissions; (2) prejudice to the defendant; (3) how long after
the deadline passed the consent forms were filed; (4) judicial
economy; and (5) the remedial purposes of the FLSA. Id.; see also
Kimbrel, 2015 WL 1396898, at *2; Hurt, 2014 WL 49571, at *1; Heaps,
2011 WL 6749053, at *1.
Courts balance these factors; no single
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factor is dispositive. See Lykins, 2015 WL 2367155, at *2; Heaps,
2011 WL 6749053, at *2.
Becknell (“Group Two Plaintiffs”) filled out and signed consent
forms before the opt-in deadline. [DE 32-1; 32-2; 32-3].
completed his form on January 30, 2017 [DE 32-1], while Dwyer and
Becknell signed their forms on February 10. [DE 32-2; 32-3].
Plaintiffs’ counsel was traveling during this time and did not
file the consent forms until February 27 – two weeks after the
opt-in deadline. [DE 32].
Defendant requests that the Court deny
Group Two Plaintiffs’ request to join this action. [DE 39].
The analysis here supports allowing the Group Two Plaintiffs
to opt in.
First, good cause exists for the late filings of
Sussman and Dwyer.
The Defendant failed to initially provide
Plaintiffs’ counsel with correct addresses for Sussman and Dwyer.
[DE 43 at p. 6].
Defendant does not explain this error in its
reply to Plaintiffs’ brief. [DE 45].
At least one other court has
ruled that “failure to provide an up-to-date address for [opt-in
plaintiff] supports finding good cause for the delay.” Kimbrel,
2015 WL 1396898, at *3.
This Court agrees. Armed only with former
addresses for Sussman and Dwyer, Plaintiffs’ counsel was delayed
in contacting Sussman and Dwyer.
This amounts to just cause. As
for Becknell, the Court finds no good cause for the late filing.
But as mentioned above, this factor is not dispositive, and courts
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in the Sixth Circuit have permitted late-filing plaintiffs to join
collective actions even without good cause. See Lykins, 2015 WL
2367155, at *3 (ruling opt-in plaintiffs could join action absent
a showing of good cause); Hurt, 2014 WL 494571, at *1 (same);
Heaps, 2011 WL 6749053, at *2 (same).
Second, Defendant will suffer little, if any, prejudice from
the inclusion of the Group Two Plaintiffs.
could, if denied admittance to this collective action, file their
own lawsuit raising nearly identical claims.
This weighs in favor
of allowing the plaintiffs to join. See Kimbrel, 2015 WL 1396898,
The Defendant also knew for more than three months that
Sussman, Dwyer, and Becknell sought to join this action.
this case presents no unfair surprise.
Defendant faces no large
discovery burden since it has already produced wage and hour
documents for these particular individuals. [DE 43 at p. 8-9].
And increasing the collective action size by about ten percent
does not rise to the level of prejudice warranting dismissal. See
Kimbrel, 2015 WL 1396898, at *3 (holding that a fifty percent
increase in class size not prejudicial); Heaps, 2011 WL 6749053,
at *2 (holding that a ten percent increase in class size not
prejudicial); Abubakar v. Co. of Solano, No. Civ S-06-2268, 2008
WL 550117, at *2 (E.D. Cal. Feb. 27, 2008) (holding that a 15
percent increase class size not prejudicial).
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Third, Group Two Plaintiffs filed their consent forms only
two weeks after the court-imposed deadline. [DE 32].
well within the time range that other courts have allowed for late
filings. See Lykins, 2367155, at *3 (“the majority of courts
permitting late opt-ins to join collective actions were faced with
a filing delay of no more than one or two months”); Stevenson v.
Great Am. Dream, Inc., No. 1:12-CV-3359-TWT, 2014 WL 4925597, at
*2 (N.D. Gal. Sept. 30, 2014)(plaintiffs allowed to join after
(plaintiffs allowed to join after filing several weeks late);
Heaps, 2011 WL 6749053, at *2 (plaintiffs allowed to join after
filing “a few months after the deadline”).
The analysis here largely overlaps with factor
two: dismissing the Group Two Plaintiffs would lead to identical
The Court finds it better to resolve all the instant
claims in one action. See Hurt, 2014 WL 494571, at *2 (“there is
little economy in spawning identical FLSA lawsuits”).
purposes of the FLSA.
“A generous reading, in favor of those whom
congress intended to benefit from the law, is also appropriate
when considering issues of time limits and deadlines.” Lykins,
2015 WL 2367155, at *3; Kimbrel, 2015 WL 1396898, at *3; Hurt,
2014 WL 494571, at *2; Heaps, 2011 WL 6749053, at *2.
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three Group Two Plaintiffs filled out and signed their consent
forms before the deadline. It would be antithetical to the purposes
of the FLSA to punish these individuals – whom Congress intended
to benefit – based on counsel’s failure to timely file the forms
with the Court.
Finally, the Court will address Defendant’s argument that, as
a threshold matter, the text of the FLSA blocks late-filing optin employees from becoming members of the class. [DE 39 at p. 45].
Defendant directs the Court to 29 U.S.C. § 256 for support.
[Id.]. That provision states that “[i]n determining when an action
is commenced for the purposes of section 255 of this title” an
action is considered commenced for an opt-in plaintiff “on the .
. . date on which such written consent is filed in the court in
which the action was commenced.” 29 U.S.C. § 256.
outlines the statute of limitations for FLSA actions. Thus, § 256
tells the Court that, “for the purposes of” determining whether
the statute of limitations has run, an action is considered
commenced for opt-in plaintiffs on the date that written consent
is filed with the court.
The statute of limitations is not at issue here.
Defendant argues that the language of § 256 “indicates a clear
Congressional intent that the controlling action for inclusion in
a FLSA collective is the filing, and not the signing, of the optin consent.” [DE 39 at p. 5].
Defendant does not direct the Court
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to a single case in support of this proposition.
Nor can the Court
find one. Indeed, the Defendant admits that courts generally follow
the five-factor test analyzed above. [DE 39 at p. 5].
Defendant does not say so explicitly, its argument would require
this Court to hold that every other court that has previously faced
this issue has been wrong.
This Court is not prepared to do so.
The plain text of § 256 applies “for the purposes of” determining
the statute of limitations, which is not before the Court.
Defendant’s Motion for Summary Judgment or in the alternative
Decertification as to Group Two Plaintiffs is DENIED.
C. Group Three: Persons Who Never Worked More Than Forty Hours
employees it claimed never worked more than forty hours per week,
the parties came to agreements regarding each plaintiff.
Specifically, Plaintiffs agree that Patrick Johnson and Mark
Comley never worked more than forty hours for NEL and dismissal is
appropriate. [DE 43 at p. 12].
Because there is no genuine issue
Motion for Summary Judgment as to Johnson and Comley is GRANTED.
Further, Defendant has withdrawn its Motion for Summary Judgment
as to Joseph Sams after discovering records of weeks in which Sams
worked more than forty hours. [DE 45 at p. 3]. Accordingly, Sams
is a proper opt-in plaintiff in this lawsuit, and because defendant
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seeks withdrawal of its summary judgment motion, that motion is
DENIED AS MOOT.
D. Group Four: Persons Whose Employment Agreements State NEL’s
Policy of Straight and Overtime Pay
Under the FLSA, employers must pay employees an overtime rate
of at least 1.5 times the regular rate for hours worked in excess
of forty hours per week. 29 U.S.C. § 207(a)(1). The “regular rate”
is defined in the FLSA regulations:
The “regular rate” of pay under the Act cannot be left to a
declaration by the parties as to what is to be treated as the
regular rate for an employee; it must be drawn from what
happens under the employment contract. The Supreme Court has
described it as the hourly rate actually paid the employee
for the normal, nonovertime workweek for which he is employed
- an “actual fact”
29 C.F.R. § 778.108
The regular rate includes “all remuneration for employment
paid to, or on behalf of, the employee” subject to statutory
exceptions. 29 U.S.C. § 207(e).
This encompasses “the hourly rate
actually paid the employee for the normal, non-overtime workweek
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Hardwood, Co., 325 U.S. 419, 424 (1945). In determining the regular
rate, the Court must consider how the employer actually, in fact,
pays the employee; parties cannot stipulate the rate. Bay Ridge
Operating Co. v. Aaron, 334 U.S. 446, 462-63 (1948).
rate is calculated on a per hour basis, even if an employee is not
paid by the hour. 29 C.F.R. § 778.109.
compensation provided by a premium rate paid for certain hours
worked by the employee in any day of workweek because such hours
are hours worked in excess of eight in a day.” 29 U.S.C. §
207(e)(5); 29 C.F.R. § 778.202.
The premium rate paid for work in
excess of eight hours in a day is “creditable toward overtime
compensation.” 29 U.S.C. § 207(h)(2).
In other words, where an
employee is paid a premium rate for hours worked in excess of eight
in a given day, that pay: (1) is excludable from the regular rate
calculation, and (2) counts as overtime payments to satisfy FLSA
requirements. See, e.g., Smiley v. E.I. Dupont De Nemours and Co.,
839 F.3d 325, 333 (3d Cir. 2016)(finding that premium payments
under § 207(e)(5)-(7) are “a kind of overtime compensation, and
compensation may be credited against the Act’s required overtime
pay.”); Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 914 n.19
(9th Cir. 2004); O’Brien v. Town of Agawam, 350 F.3d 279, 289 n.18
(1st Cir. 2003); Herman v. Fabri-Centers of Am., Inc., 308 F.3d
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580, 587 (6th Cir. 2002) (“when the FLSA was amended in 1949, 29
U.S.C. §§ 207(e)(5), (6), and (7) excluded certain premium payments
from the computation of overtime, while 29 U.S.C. § 207(h)allowed
those payments to be credited against FLSA overtime.”).
Defendant moves for summary judgment or, in the alternative
decertification, as to opt-in plaintiffs with agreements that NEL
claims “clearly state NEI’s policy of straight time and overtime
pay.” [DE 39 at p. 7].
NEL argues that these “Group Four” opt-in
plaintiffs – Justin Sanchez, Jeremy Thompson, and Elijah Gawthorp
– signed contracts that break down straight and overtime pay in
compliance with FLSA. [DE 45 at p. 4].
Since the filing of this
lawsuit, NEL has changed the language of its employment contracts
to more clearly delineate how it pays employees. [DE 39-1]. The
Group Four Plaintiffs work under these newly worded agreements.
Because the contracts explain overtime pay, and NEL has outlined
how these particular plaintiffs have received overtime for hours
worked in excess of eight per day, Defendant argues there is no
genuine issue of material fact.
Plaintiffs make two responses to Defendant’s arguments.
First, they argue summary judgment is unwarranted because the Group
Four Plaintiffs “were still denied the overtime pay which they are
lawfully owed, despite being compensated under Defendant’s revised
compensation scheme.” [DE 43 at p. 13]. In particular, Plaintiffs
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regulations: (1) the required overtime computation method for “day
rate” compensation under 29 C.F.R. § 778.112, and (2) the “splitday” scheme prohibited by 29 C.F.R. § 778.501. Second, plaintiffs
argue decertification is premature because discovery has not been
fully completed. [Id.].
NEL claims it pays a per-day overtime premium of time-and-ahalf to Group Four Plaintiffs for hours worked in excess of eight.
If true, those premiums would be excludable from the regular rate
and satisfies the FLSA overtime payment requirement. 29 U.S.C. §
207(e)(5); 29 C.F.R. § 778.202.
The Group Four Plaintiffs’
contracts state that payment is based on an expected eleven-hour
workday. [DE 39-1].
As part of that eleven-hour day, NEL pays
each employee a regular rate for the first eight hours and an
overtime rate for hours worked in excess of eight. [Id.]. In other
words, NEL claims it pays overtime on a daily basis. [DE 45-2 at
For example, Thompson’s contract calls for regular pay of
$10.40 per hour and overtime pay of $15.60 per hour. [DE 39-1 at
The contract states that Thompson will “receive a weekly
paycheck based on $130/day.” [Id.].
This $130 breaks down as
follows: for the first eight hours, Thompson receives $10.40 per
hour, for a total of $83.20.
The next three hours – hours worked
in excess of eight per day and thus “overtime” – NEL pays Thompson
$15.60 per hour, for a total of $46.80.
Added together, the
regular pay ($83.20) and overtime pay ($46.80) come to a total of
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$130 – the same amount NEL lists as Thompson’s expected daily
earnings. The contracts for Sanchez and Gawthorp, while containing
different numbers, follow the same methodology. Defendants argue
that this contractual arrangement does not violate the FLSA.
The FLSA regulations provide guidance on how to calculate the
regular rate in particular situations, including when an employer
utilizes a “day rate” scheme, or a “split-day” plan. 29 C.F.R. §§
We start with the Plaintiffs’ claim that
Defendant has failed to follow the proper payment method under a
“day rate” scheme. [DE 43 at p. 14].
Day Rate Plan
A “day rate” occurs when the employee is “paid a flat sum for
a day’s work . . . without regard to the number of hours worked in
the day or at the job.” 29 C.F.R. § 778.112.
When an employer
utilizes a day rate, the regular rate – which must be reduced to
a per-hour amount – is determined “by totaling all the sums
received at such day rates . . . in the workweek and dividing by
the total hours actually worked.” Id.
That number – the “regular
rate” – is then divided by two to establish the employee’s halftime pay. Id.
The half-time pay is added to the employee’s hourly
pay for each hour worked in excess of forty. Id.
Defendant argues that the day rate regulation does not apply
to Group Four Plaintiffs because NEL does not pay employees
“without regard” to the number of hours worked. 29 C.F.R. §
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Instead, NEL argues it employs a “quarter-day” system in
which NEL divides its standard eleven-hour workday into four
quarters. [DE 45 at p. 6-8; 45-2 at p. 5].
Whenever an employee
works more than 8.25 hours in a day – three-fourths of NEL’s
eleven-hour workday – NEL rounds up to the nearest quarter day.
[DE 45 at p. 8; 45-2 at p. 5].
In practice, NEL gives employees
credit for working eleven hours any time that employee worked more
than 8.25 hours in a given day. [DE 45 at p. 8]. But if an employee
works less than three-fourths of the expected eleven-hour day, NEL
credits the employee for only a portion of his daily pay. [DE 45
at p. 7-8].
According to NEL, an employee receives the full per
day amount listed in his contract only if he actually works more
than three-fourths of the eleven hour workday — in which case, NEL
rounds up to eleven hours. [DE 45-2 at p. 5].
NEL offers Sanchez’s contract and pay and time records for
the week of October 18-22, 2016 to explain how the system works.
[DE 39-1; 45-1].
Sanchez’s contract lists an expected daily rate
of $135 per day with a regular rate of $10.80 per hour and an
overtime rate of $16.20 per hour. [DE 39-1 at p. 4].
worked three days on the week in question: October 18, 19, and 20.
If Sanchez were paid without regard to the number of
hours worked, he would have made $405 that week, or $135 for each
of the three days.
Instead, Sanchez collected $371.23. [Id.].
worked only 7.52 hours on October 20, and because he worked fewer
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hours, Sanchez received less pay.
In other words, Sanchez was not
paid without regard to the number of hours worked. 29 C.F.R. §
Still, Plaintiffs spend considerable time arguing that NEL
“does not follow [the day rate] methodology in the slightest.” [DE
43 at p. 15].
Plaintiffs devote an entire page of their brief to
charts showing what Group Four Plaintiffs should be paid under the
day-rate regulations. [Id. at p. 16].
The Plaintiffs’ argument puzzles the Court since, at numerous
rejected the notion that NEL utilizes a true day-rate scheme.
the Complaint, Plaintiffs state “NEL’s compensatory scheme . . .
differs sharply from the characteristics specified in the Code of
Federal Regulations . . . in that NEL does not provide its
employees a flat rate without regard to the number of hours worked
in a day. Instead, NEL pays employees according to the amount of
quarter-days each employee has worked.” [DE 1-1 at p. 10, ¶22].
Plaintiffs also refer to NEL’s payment plan as a “false day rate”
[Id.] and state that “NEL does not pay a true day rate.” [Id. at
p. 22, ¶25].
In moving for conditional certification, Plaintiffs
reiterated this position, arguing that NEL’s payment plan “differs
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sharply” from the day rate plan “specified in the Code of Federal
Regulations, in that NEL does not provide its employees a flat
rate without regard to the number of hours worked in a day.” [DE
15 at p. 3-4].
Regardless of how Plaintiffs describe it, NEL’s pay scheme
for Group Four Plaintiffs is not a day rate under 29 C.F.R. §
NEL’s policy does not pay employees without regard to
the number of hours worked.
Employees do not receive their full
eleven-hour paycheck when they do not work a full day.
C.F.R. § 778.112 does not apply to these plaintiffs.
(ii) Split Day Plan
splitting a workday into two artificial rates of pay. Walling v.
Helmerich & Payne, Inc., 323 U.S. 37 (1944); F.W. Stock and Sons
Inc. v. Thompson, 194 F.2d 493, 497 (6th Cir. 1954); 29 C.F.R §
These payment plans are “designed . . . to deprive the
employees of their statutory right to receive [overtime pay] for
all hours worked in excess of the first 40 hours.” Walling, 323
U.S. at 40. Under such a plan, the normal workday is “artificially
divided into two portions one of which is arbitrarily labeled the
‘straight time’ portion of the day and the other the ‘overtime’
portion.” 29 C.F.R. § 778.501.
These plans typically include low
hourly rates for the first few hours of “straight time” and a
higher “overtime” rate for the next few hours. Id. The regulations
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prohibit employers from paying different rates for half of a shift
in an effort to avoid paying overtime. Id.
“Such a division of
the normal 8-hour workday into 4 straight time hours and 4 overtime
hours is purely fictitious.” 29 C.F.R. § 778.501(b).
This case does not involve a split day as contemplated by the
Here, Defendant does not pay employees at a
regular rate for less than eight hours per day. Instead, Defendant
claims it pays a regular rate for the first eight hours, and an
overtime rate for hours in excess of eight each day.
The FLSA and
its regulations expressly permit this arrangement. 29 U.S.C. §
207(e)(5); 29 C.F.R. § 778.202.
There is nothing “artificial”
about this method of paying employees as several courts have
recognized. See Goulas v. LaGreca, 557 F. App’x 337, 338 (5th Cir.
2014) (per curiam)(ruling a split of the workday into eight hours
of straight time and an additional overtime period “did not show
such an impermissible split day plan”); Parth v. Ponoma Valley
Hops. Med. Ctr., 630 F.3d 794 (9th Cir. 2010)(ruling that paying
eight hours of regular rate and four hours of overtime rate is not
a split day); Conner v. Celanese, Ltd., No. V-03-54, 2006 WL
1581923, at *2 (S.D. Tex. June 6, 2006) (finding no split day where
“Defendant paid an hourly rate for the first 8 hours worked in
every 12-hour shift and then paid time-and-a-half for each hour
worked over 8 hours.”).
Thus, the Court rejects Plaintiffs’
argument that NEL’s scheme amounts to an impermissible split day.
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Prorated Daily Payments
Although the Court finds that NEL’s payment scheme does not
amount to a “day rate” or “split day,” a genuine issue of material
fact exists as to whether Group Four Plaintiffs have received
As the Court has already explained, employers may satisfy
employees for hours worked in excess of eight per day. 29 U.S.C.
§§ 207(e)(5), (h)(2); 29 C.F.R §§ 778.108, 778.202.
But if an
employee does not receive a premium rate for hours worked in excess
of eight hours per day, that amount is included in the regular
rate calculation and is not creditable toward overtime. 29 U.S.C.
§§ 207(e), (h). So where an employee effectively receives the same
hourly rate for the first eight work hours as he does for hours in
excess of eight, the employer is not paying a premium. 29 U.S.C.
§ 207(e)(5). This is true even where the parties attempt to
stipulate that the employee receives regular and overtime rates.
29 C.F.R. § 778.108.
The Court must determine the regular rate
based on what actually happens under the contract. Bay Ridge
Operating Co. v. Aaron, 334 U.S. 446, 461 (1948).
If, as their contracts state, Group Four Plaintiffs do receive
for hours worked in excess of eight per day, then
NEL is in compliance with the FLSA.
But if, despite the language
of the contracts, NEL pays the Group Four Plaintiffs the same
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hourly rate regardless of the number of hours they work per day,
then NEL does not pay a true premium for hours worked in excess of
Thus, the employees’ regular rate would include all of
their weekly earnings divided by the total number of hours worked.
29 U.S.C. § 207(e); 29 C.F.R. §§ 778.108, 778.109. Employees would
then be entitled to overtime pay of 1.5 times the calculated
regular rate for each hour worked in excess of forty per week. 29
U.S.C. § 207(a)(1).
Plaintiffs allege that NEL’s compensation scheme works as
follows: First, NEL assigns each employee a daily sum to be paid
for a full standard eleven-hour workday.
Second, for each day,
NEL determines how many quarter days a particular employee has
Finally, NEL takes the daily sum assigned to a particular
employee and multiples it by the number of quarter days that
employee has worked.
So, for example, an employee working three
quarter days – three-fourths of his standard day – would receive
three-fourths of his daily pay.
scheme and reiterates that it pays employees based on a combination
of the regular rates and overtime rates listed in the contracts.
[DE 39; 45].
NEL further contends that employers may use an
expected daily sum with built in regular and overtime rates. [DE
45 at p. 8]. As support for this proposition, NEL cites to Seraphin
v. TomKats, Inc., No. 11-CV-4382, 2013 940914 (E.D.N.Y. Mar. 11,
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2013). In Seraphin, the defendant company paid an employee $200
per day based on twelve and fourteen-hour workdays. Id. at *1. The
district court found that regular and overtime rates were built in
to the $200 daily sum and granted defendant’s motion for summary
judgment. Id. at *2-5.
Although similar to Seraphin, this case is distinguishable in
at least one crucial respect.
The defendant employer in Seraphin
produced pay records to corroborate its argument that regular and
overtime rates were built in to the employee’s daily pay. Id. at
Those records showed that on days when the plaintiff worked
partial days – i.e., on days the employee did not work in excess
of eight hours and thus should not have received an overtime rate
– defendant paid the regular rate it claimed was part of the
The pay records made it clear that the defendant
paid the plaintiff a particular sum for regular hours and a premium
rate for hours in excess of eight – payments that became creditable
toward overtime. Id.; see also 29 U.S.C. § 207(h)(2).
Here, nothing in the Defendant’s Summary Judgment Motion
suggests it ever paid employees the regular rate for the first
eight hours and a premium rate for additional hours.
points to no evidence corroborating its claim.
And in fact, the
pay records attached to Defendant’s motion support Plaintiff’s
contention that NEL did not pay a premium.
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One need look no further than Sanchez’s pay records to see
Although Sanchez’s records do show – as NEL argued – that
the compensation scheme does not amount to a true “day rate,” the
records also indicate that NEL did not pay a regular rate for the
first eight hours and a premium rate for hours in excess of eight.
This becomes apparent when one examines the week of October 18,
During that week, NEL paid Sanchez less on October 20, 2016
because he worked fewer hours. [DE 45-1].
But although NEL paid
Sanchez a smaller daily amount on days he worked fewer hours, the
records suggest that Sanchez’s hourly rate remained the same even
when he did not work overtime hours.
To see how, the Court will
examine Sanchez’s contract and pay and time records in a bit more
Under the contract, NEL paid Sanchez an expected $135 per day
based on a standard eleven-hour workday. [DE 39-1].
That is, if
Sanchez worked the full eleven hours, he received the full amount.
But if Sanchez worked less than a full day, he did not receive the
full amount. [DE 45; 45-2].
The Court finds that NEL’s records
indicate as much.
NEL argues that Sanchez’s expected daily amount had the
following regular and overtime rates built in: a regular rate of
$10.80 per hour and an overtime rate of $16.20 per hour. [DE 39-1
at p. 4].
The math checks out: if one works eight hours at $10.80
per hour and works three hours at $16.20 per hour, that person
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would earn $135 for the day. And, as discussed, the FLSA allows
employers to pay overtime on a daily basis and exclude that pay
from the regular rate calculation. 29 U.S.C. §§ 207(e)(5), (h)(2).
Still, NEL’s explanation falls short.
First, unlike in
Seraphin, NEL has presented no corroborating evidence that it ever
actually paid employees based on regular and overtime rates.
Second, Sanchez’s work during the October 2016 week suggests NEL
paid him at a rate not contained in the contract.
records support the claim that NEL paid Sanchez at the same hourly
rate for all hours worked. [DE 45-1].
On October 18 and 19,
Sanchez received a full $135 for working a full eleven hours. [DE
As mentioned, this would fit with NEL’s breakdown of
regular and overtime rates contained in Sanchez’s contract. [DE
But on October 20, 2016, Sanchez worked 7.52 hours and
received $101.25. [DE 45 at p. 6-7; 45-1].
This payment amount
defies NEL’s explanation of its compensation scheme.
Sanchez worked fewer than eight hours that day, he would not have
received his overtime rate.
But NEL, which rounds to the nearest
quarter day for employees, gave Sanchez credit for working threequarters of an eleven-hour shift that day – or 8.25 hours. [DE 45
at p. 6-7].
Thus, Sanchez would be entitled to eight hours of
compensation plan. Sanchez should have received $90.45 for eight
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hours of regular time and 0.25 hours of overtime.1 Instead NEL paid
Sanchez $101.25 [DE 45 at p. 6-7].
NEL does not explain where the $101.25 amount came from.
the Court notes that $101.25 amounts to three-fourths of $135 –
the daily rate assigned to Sanchez. [DE 39-1].
Thus, on a day
Sanchez worked three-fourths of his expected shift, he received
three-fourths of his expected daily pay.
This falls in line with
what Plaintiffs have alleged all along: that NEL does not pay
overtime wages and instead prorates employees’ expected daily sum
based on the number of quarter days that employee worked.
practice, pay overtime premiums contained in employees’ contracts.
NEL admits, for example, that Sanchez received $101.25 on October
20 for 8.25 hours worked. [DE 45 at p 6-7].
Thus, his hourly rate
that day was $12.27 – a rate found nowhere in his contract.2
because he was given credit for 8.25 hours, Sanchez should have
accrued a mere 0.25 hours of premium pay that day for hours worked
in excess of eight.
As explained above, however, this is plainly
not what happened because had Sanchez earned eight hours of regular
pay and 0.25 hours of overtime, he would have earned $90.45 for
This represents the total sum from adding the product of Sanchez’s regular
rate multiplied by his regular hours to the product of Sanchez’s overtime
rate multiplied by his overtime hours. The equation looks like the following:
($10.80 x 8) + ($16.20 x 0.25) = $90.45
2 This represents the quotient from dividing the amount Sanchez made that day
($101.25) by the number of hours NEL credited him for working (8.25) = $12.27
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that day, not $101.25. When NEL paid Sanchez $135 for eleven hours
worked on both October 18 and 19, he similarly made an average
rate of $12.27.3
Although NEL claims it breaks down the $135 daily
sum into a regular rate for the first eight hours and an overtime
rate for the next three hours, the fact that Sanchez earned the
same rate – $12.27 per hour – on a days when accrued 0.25 hours of
overtime and on days when he accrued three hours of overtime
suggests that the regular and overtime rates are a fiction.
regardless of whether they worked hours in excess of eight per
If true, those employees would not be receiving a premium
rate under the FLSA. 29 U.S.C. § 207(e)(5); 29 C.F.R. § 778.202.
And if the payments to employees were not premiums for hours in
excess of eight, the payments must be included in calculating the
regular rate. 29 U.S.C. § 207(e); 29 C.F.R. § 778.108.
Looking even closer at the week of October 18, the Court finds
NEL’s time and pay records do not match the rates listed in
Sanchez’s contract. Sanchez’s time sheet indicates he worked 23:31
regular hours and 5:19 overtime hours that week. [DE 45-1].
Given that NEL rounds to the next highest quarter
day, NEL gave Sanchez credit for 24 regular hours (eight for each
This represents the quotient of $135 (daily pay) divided by 11 (hours
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of the three days worked) and 6.25 overtime hours (three overtime
hours each for October 18 and 19, and 0.25 for October 20).4
received $259.20 in regular rate pay and $101.25 in overtime pay
for a total of $360.45.5
But instead Sanchez earned $371.25 that
week – $311.36 in regular pay, and $59.89 in overtime. [D 45-1 at
p. 2]. With a regular rate of $10.80, Sanchez should receive
$311.36 in regular pay for working 28.83 hours of regular time.6
Similarly, with an overtime rate of $16.20, Sanchez should receive
$59.89 in overtime pay when he works 3.69 hours of overtime.7 But,
as mentioned, Sanchez’s time records for that week indicate he
worked 23.517 regular hours and 5.317 overtime hours. [DE 45-1].
Put simply, NEL’s number do not add up, and the Court cannot
determine that Sanchez was ever actually paid according to the
rates listed in his contract – or a premium at all.
Jeremy Thompson’s records also present problems for NEL’s
Thompson’s contract lists a daily sum of $130 per
day based on $10.40 of regular pay and $15.60 of overtime pay. [DE
NEL admits Sanchez was given credit for eleven hours on October 18 and 19,
and 8.25 hours on October 20. [DE 45 at p. 6-7].
5 This represents the sum of the product of Sanchez’s expected regular rate
and regular hours and the product of his overtime rate and overtime hours, or
($10.80 x 24) + ($16.20 x 6.25) = $360.45.
6 This comes from dividing Sanchez’s regular pay the week of October 18 by his
regular rate, or $311.36 / $10.8. The quotient represents the number of
regular hours Sanchez must work at a rate of $10.80 to receive $311.36.
7 This comes from dividing Sanchez’s overtime pay by his overtime rate, or
$59.89 / $16.20. This quotient represents the number of overtime hours
Sanchez must work at a rate of $16.20 to receive $59.89.
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39-1 at p. 6].
During the week of October 23, 2016, Thompson
worked four days for a total of 32 regular hours and 10:44 in
overtime (or 10.722) hours. [DE 43-10 at p. 2].
Given the regular
and overtime rates in his contract, Thompson should have received
$332.80 in regular pay and $187.20 in overtime pay that week for
a total of $520.8
Records for that week show NEL did, in fact,
pay Thompson a total of $520. [DE 43-10 at p. 1]. But NEL paid
Thompson $416 for regular hours and $104 for overtime hours. [Id.].
This breakdown does not fit with the pay rates in Thompson’s
At a regular rate of $10.40 per hour, Thompson would
have to work exactly 40 regular hours to make $416 for the week.
Thompson would also have to work 6.67 hour of overtime at a rate
of $15.60 per hour to make $104 of overtime pay.
sheet is clear: he did not work those hours that week. [DE 43-10].
NEL has not explained how it determined Thompson’s pay breakdown,
and the Court is not satisfied that the regular and overtime rates
in his contract explain the payments.
In sum, the contracts, pay records, and time sheets create a
genuine issue as to whether NEL built regular and overtime rates
into the daily sum paid to employees or whether NEL paid employees
the same rate regardless of the number of hours worked. This issue
is plainly material.
If NEL did, in fact, pay employees a premium
Because NEL rounds to the nearest quarter day, it would have given Thompson
credit for 12 overtime hours for the week. Thus, the overtime total amount is
($15.60 x 12) = $187.20.
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for hours worked in excess of eight per day, then that amount is
not a part of the regular rate calculation and NEL has already
207(e)(5), (h)(2); 29 C.F.R. §§ 778.201, 778.202.
But if NEL
simply prorated daily sums and paid the same rate even for hours
worked in excess of eight per day, then the total sum of the
determination, the employees are entitled to a higher overtime
rate, and NEL has not complied with the overtime requirements. 29
U.S.C. § 207(e), (h)(2); 29 C.F.R. §§ 778.108, 778.109.
a genuine issue exists as to this material fact, Defendant’s Motion
for Summary Judgment is DENIED.
Finally, decertification is also not appropriate. First,
discovery is yet to close and thus it would be premature. See
Monrore, 860 F.3d at 396.
Second, the claims of Group Four
Plaintiffs remain the same as the rest of the class – that NEL
prorated daily rates and never paid overtime premiums. Thus,
Plaintiffs is DENEID.
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
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Defendant’s Motion for Summary Judgment as to Dimitri
Roskolov [DE 39] is DENIED. Plaintiff may substitute
William Austin for Roskolov in this collective action.
alternative Decertification, as to Harry Sussman, Andy
Dwyer, and Christopher Becknell is DENEID.
Defendant’s Motion for Summary Judgment as to Patrick
Johnson and Mark Comley is GRANTED
alternative Decertification, as to Joseph Sams is DENIED
Jeremy Thompson, and Elijah Gawthorp is DENEID.
This the 25th day of October, 2017.
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