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Ninth Circuit Makes Collective FLSA Wage and Hour Actions Easier

Posted on Saturday, December 01, 2018 at 12:00AM

GARY MESSING
Founding Partner
JIM HENDERSON
Attorney
Messing Adam & Jasmine LLP


A police officer completing paperwork doesn’t finish up until 25 minutes after the end of the shift. While the department has a written policy to pay overtime, the “unwritten policy” discourages “small overtime claims.” So the officer doesn’t submit an overtime claim.
Sound familiar? If it does, this could be in violation of state and federal law. 
The requirement that California employers track all measurable time was addressed in an article authored by Gregg Adam and Teal Miller of our law firm in the September issue of PORAC Law Enforcement News (see page 25 of that issue). 
Federal law is often less protective for employees than California law. For example, unlike California law, its “averaging” method does not require that all hours worked be compensated. But it has one big advantage over California law for public employees:  Overtime. The overtime rules in the California Labor Code and in the Industrial Welfare Commission’s Wage Orders have not been applied to public employees. But the FLSA’s overtime provisions do apply to public employees — largely as a result of the 5-4 decision by the United States Supreme Court in Garcia v. San Antonio Metropolitan Transit Authority in 1985.
Lately, a slew of FLSA claims has been filed by peace officers and other public employees — often contending that the employer failed to correctly include all premiums and other forms of remuneration in the employee’s overtime pay. These are often called “regular rate” cases.
Yet it has often been difficult for employees to pursue those claims. The problem is that small amounts of unpaid or underpaid overtime are often not sufficient to support a legal action by one aggrieved employee. But a new case issued last month by the federal Ninth Circuit Court of Appeals, Daniel Campbell v. City of Los Angeles (9th Cir. Sept. 13, 2018) 2018 WL 4354379, makes it easier for employees to band together and pursue FLSA claims through what is called a “collective action.” A collective action allows plaintiffs to proceed collectively if they are “similarly situated” — that is, their claims share a similar issue of law or fact material to the disposition of their FLSA claims. A collective FLSA action differs from a class action in that individuals “opt in” (join) the lawsuit as plaintiffs in a collective action, whereas individuals must “opt out” (leave) a class action.
Campbell involved two collective FLSA actions brought by more than 2,000 Los Angeles police officers asserting claims for earned but unpaid overtime that was not reported due to “workplace culture and policy” that overtime of less than one hour was not to be reported. It is important because the court rejected the traditional use of class action rules to certify a collective action. Requiring a group of plaintiffs to satisfy class action rules to certify a collective action was contrary to the purpose of the FLSA — “a remedial statute with broad worker-protective aims.”  
The Campbell decision helps in several ways.
1. An alleged violation based on a department-wide policy or procedure can make plaintiffs sufficiently “similarly situated” to allow an FLSA collective action to proceed.
2. A written policy contrary to the plaintiffs’ claims need not defeat the action — the Campbell court recognized that an express policy could be superseded by an implied or tacit policy or practice.
3. Even if the primary evidence consists of acts and statements of diverse direct supervisors, the officers can still be “similarly situated” if it can be shown that upper level management was aware of the discouraging of reporting overtime and either fostered it or took no action to stop it.  
4. While “smoking gun” evidence is best, other evidence can support a finding of an illegal department-wide policy or practice — e.g., if the discouragement of reporting overtime has been longstanding, knowledge by management could be established by showing that upper-level managers include individuals who were previously lower-level supervisors when the improper policy/practice was occurring.
5. While it may be unlikely that any “we have to discourage overtime reporting” memos exist, there can be other documentary evidence to support a department-wide policy or practice. For example, emails critical of small overtime requests, memos to supervisors regarding high expenditures for overtime, etc. Under Campbell, the plaintiffs only have to show that there is a “genuine dispute of material fact” to survive decertification of the collective action.  
In summary, in the Campbell decision, the Ninth Circuit recognized that the FLSA must be construed and enforced to protect workers from illegal compensation practices by employers. This decision will make it much easier for public sector employees, including public safety personnel, to pursue the recovery of unpaid overtime in collective actions.
About the Authors
Gary Messing is a partner, and Jim Henderson is an attorney at Messing Adam & Jasmine, a PORAC LDF panel attorney firm that represents public safety officers employed by state and local municipalities.
 

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