Untitled Texas Attorney General Opinion: KP-0431

CIVIL – Fair Labor Standards Act 29 C.F.R. 785.22 overtime compensation 24-hour shift sleeping period hours worked at-will employment disclaimer employee handbook express agreement continuing to work and accept pay is not conclusive evidence of implied agreement contemporaneous protest summary judgment.

Plaintiffs were formerly employed as truck drivers for JP Trucking, Inc. (JP Trucking). They filed a complaint alleging that JP Trucking failed to pay them time and a half as required by the Fair Labor Standards Act (FLSA) and the Colorado Minimum Wage Order No. 31 (Wage Order). Following a bench trial, the trial court found for plaintiffs and awarded them damages. JP Trucking appealed, and another Court of Appeals division concluded it could not resolve the appeal without further factual findings. On remand, the trial court found that plaintiffs were exempt from overtime under FLSA's Motor Carrier Act (MCA) exemption. However, the trial court also found that because plaintiffs either did not drive out of state or their out-of-state driving was de minimis, they were not "interstate drivers" under the Wage Order. The court awarded plaintiffs damages under the Wage Order along with reasonable fees and costs. On appeal, JP Trucking contended that the trial court interpreted "interstate drivers" in the Wage Order too narrowly. FLSA sets federal minimum wage and overtime requirements for certain employees nationwide, while the Wage Order sets the minimum wage and overtime pay requirements for Colorado employees who work in certain industries. The Wage Order provisions are largely patterned after FLSA, and the Wage Order exemption includes employees who are subject to the MCA exemption, which exempts from the foregoing requirements drivers who transport goods in interstate commerce. Here, the trial court's findings on limited remand established that plaintiffs are subject to the MCA exemption, and JP Trucking satisfied its burden of proving that it transported goods in interstate commerce. Accordingly, plaintiffs are exempted from overtime pay. The judgment was reversed and the case was remanded with directions to enter judgment in favor of JP Trucking and to vacate the damages award.

REPORTED OPINION granting Motion for Protective Order. Signed by Judge Elaine D. Kaplan. (feb) Service on parties made. Keywords re Opinion and Order on Motion for Protective Order: Protective Order Anonymity FLSA Overtime Pay Federal Bureau of Investigation English Monitor Analyst

REPORTED OPINION and ORDER: finding NCIS classified improperly Mr. Shea as FLSA exempt finding NCIS erred in good faith and with a reasonable basis, precluding liquidated damages denying plaintiff's request to reconsider grant of summary judgment to government on willfulness denying plaintiff's Motion to Compel awarding $42,750.84 in compensatory damages for July 2014 through September 2018 and awarding compensatory damages under the same methodology for overtime hours accrued after October 2018 until Mr. Shea has been classified as non-exempt. In due course, Mr. Shea may apply for an award of reasonable costs and reasonable fees for witnesses and attorneys under 29 U.S.C. § 216(b). The Clerk is directed to enter final judgment under RCFC 54(b) as specified. Signed by Senior Judge Charles F. Lettow.

FLSA, Class Certification- Plaintiffs sought conditional certification of an FLSA class pursuant to 29 USC 216(b) based on a clock-in and clock-out rounding policy. The magistrate found that potential plaintiffs were identified and submitted affidavits. However, the magistrate found evidence of a widespread discriminatory practice lacking because defendant did not uniformly enforce the clock-in and clock-out rounding policy and, therefore, that plaintiffs could not prove a violation as to all plaintiffs. Thus, the magistrate recommended denial of conditional class certification.