While we generally look at overtime as a “wage and hour” issue, I am once again reminded of how overtime is connected to other employment statutes.  Recently, on an issue of first impression, the First Circuit found that the Family and Medical Leave Act (FMLA) allows a prevailing plaintiff to recover lost overtime as part of a back-pay award.  Pagan-Colon v. Walgreens of San Patricio Inc.

Pagan, an assistant manager at a Walgreens in Puerto Rico, brought a lawsuit under the FMLA alleging that he was fired in retaliation for taking a medical leave absence.  In addition to other damages, Pagan claimed he was entitled to overtime wages under the FMLA as part of “other compensation denied or lost.”  At the district court level, the jury returned a verdict in favor of Pagan on his FMLA retaliation claim. As part of his back-pay award, the district court included $20,637 in lost overtime wages.  In affirming the overtime award, the First Circuit reasoned that, under the FMLA, a prevailing plaintiff may recover “any wages, salary, employment benefits or other compensation denied or lost” due to violation of the statute and that overtime pay certainly falls into the category of “other compensation.” 

To calculate overtime owed, the district court estimated that Pagan would have worked 6.5 hours of overtime per week over the 125-week period between his termination and the judgment.  The district court obtained the 6.5 hours per week figure by using a year-to-date average of Pagan’s weekly hours during the four months preceding his termination.  The district court implicitly assumed that the year-to-date average was more reliable than a 12-month average for determining how much overtime Pagan would have worked going forward if he was not terminated.  The First Circuit found no “clear error” in the district court’s calculation of overtime.

Insight for Employers

This decision may not be an anomaly.  There have been other federal appellate courts that included overtime wages as part of a back-pay award under other employment statutes, such as Title VII.  Accordingly, employers should be aware of whether the appellate court(s) where they are located allow the inclusion of overtime in back-pay awards and how that overtime may be calculated.  When looking at potential damages in an employment claim, employers should consider whether including any potential overtime owed in the calculation of back-pay is appropriate.