The continued wave of FLSA lawsuits shows an alarming trend and emphasis on wage and hour related disputes both in the private and federal enforcement contexts. In fiscal year 2017, the Department of Labor, Wage and Hour Division reportedly collected an average of $740,000 in back wages for workers per day. (https://www.dol.gov/whd/data) In the context of private litigation, the top ten most expensive FLSA lawsuits for 2017 reported amounted to over $180 million. (https://blog.tsheets.com/2017/business-help/most-expensive-flsa-overtime-lawsuits-2017) And, while the construction industry was fortunate to avoid this particular “top 10” list, it is far from insulated from wage and hour lawsuits in a variety of contexts.
Fundamental to wage and hour law is the FLSA’s requirement that employers must pay for all hours which they suffer or permit an employee to work. Certain preliminary or postliminary activities such as walking or donning and doffing ordinary gear may, under many circumstances, be excluded from compensable time, as may meal breaks of at least thirty minutes in duration if employees are completely relieved of duty for purposes of eating a meal. Many organizations utilize pay practices which automatically deduct regular meal periods or which pay only for scheduled (rather than tracking actual) hours of work, an increasingly dangerous practice, particularly in the context of field or craft employees in the construction setting. Many times employees, with mounting success, recall frequent “compensable” activities during employer-excluded periods and the employer is left to try to prove the contrary. Recent cases illustrate many such costly scenarios, but expanded into the context of collective (or class) actions under federal law or state law (the latter pertaining to those companies performing work outside of Louisiana and in states with wage and hour laws similar to the FLSA).
For example, in Gonzales v. BMC West (17-0039, April 11, 2018), a construction company paid workers according to set scheduled hours, rather than hours they actually worked, and failed to compensate for work done during, among other things, meal periods. The workers, with a potential class in excess of 9,000 plaintiffs, sued based upon these and related practices, and on April 11, 2018, the parties petitioned for approval of a settlement in which BMC would pay the workers 4.55 million dollars.
In Tyger v. Precision Drilling Corp. (11-cv-01913, April 11, 2018), the court allowed a group of riggers to proceed with a collective action against their employer, claiming they should have been paid for the time spent changing into or out of their protective equipment and walking to or from shift meetings which took place before and after their shifts. The employer argued that the “donning and doffing” and walking time were preliminary activities properly excluded from compensable time. In denying the company’s motion for summary judgment, the court focused on a dispute over the level of toxicity of the material that the gear protected against and phrased the relevant inquiry as whether the working environment at issue rendered donning and doffing the protective gear indispensable to “safe completion of the plaintiffs’ principle activities.”
Finally, the FLSA makes it unlawful to discharge or otherwise discriminate against an employee for filing a complaint or participating in or testifying in an FLSA proceeding. In Valle v. Beauryne Builders, LLC (17-cv-274, March 23, 2018), a retaliation case pending in federal court in Louisiana, the court refused to dismiss a collective action lawsuit wherein the plaintiffs alleged that their employer retaliated against them by contacting immigration officials in order to remove plaintiffs from the litigation. In so ruling, the court stating that “threatening or contacting immigration services in retaliation for filing FLSA claims against an employer has been recognized by many courts as an adverse employment action under the FLSA anti-retaliation provisions.”