By Marjorie Johnson, J.D.
A nursing home will face trial on a collective FLSA action asserting that it failed to pay overtime to several nurses who regularly worked through their breaks due to a heavy workload, and whose supervisors told them to work the extra hours but wouldn’t sign overtime approval forms. A federal court in New York denied the employer’s motion for summary judgment on the plaintiffs’ overtime and meal break claims, as well as its motion to decertify the small opt-in class (Williams v. The Bethel Springvale Nursing Home, September 12, 2017, Roman, N.).
Worked through breaks without pay. This collective FLSA action was brought by five nurses (the named plaintiff and four opt-ins), who asserted that their employer violated the FLSA by failing to pay them overtime. Specifically, they claimed that they often worked late and through their breaks due to their heavy workloads, and were regularly told by their superiors to work in excess of their scheduled work-week without overtime pay.
The employer’s policies required its nurses to obtain signed overtime approval forms prior to at the end of a given pay period if they were seeking overtime pay. The nurses, however, claimed that their supervisors would generally not sign these forms even if they worked beyond their regular workweek shifts. They also testified that they regularly worked through their meal breaks without compensation, despite their repeated complaints to management.
Did automated system accurately track time? The nurses’ working time was recorded through an automated system, but the parties disputed whether it accurately tracked overages. The nurses contended that they were often asked to “clock out” while continuing their work until it was completed. They also provided numerous examples of where the records showed they worked more than 40 hours for a week, but their pay for that period did not include overtime pay.
Right to overtime after “gap” time. The court rejected the employer’s assertion that the named plaintiff’s 37.5-hour shift made the FLSA claims untenable as a matter of law. The employer was correct that an employee who has not worked overtime has no claim under the FLSA for hours worked below the 40–hour overtime threshold, unless the average hourly wage falls below the federal minimum wage. Therefore, any “gap” time (the time between the end of the 37.5-hour shift and a standard 40-hour workweek) was non-compensable under the FLSA.
However, it was not, as the employer claimed, “bedrock” law that the nurses must “bridge” the gap-time to recover for any overtime worked. Specifically, it was the employer’s view that an employee must prove entitlement to compensation of those gap hours before the FLSA will allow recovery for time worked beyond a 40-hour workweek. Agreeing with the nurses that this was “absurd,” the court found that while they couldn’t recover for the 2.5-hour “gap” time, “work is work,” and they could recover for hours worked in excess of 40 hours per week.
Enough evidence of overtime hours worked. Here, the nurses alleged that they not worked more than their scheduled 37.5 hours, but that they worked more than 40 hours in a week. Moreover, triable issues existed as to their actual work schedules and missed meal breaks. The named plaintiff specifically testified that she and the other nurses were “asked to clock out and go back and finish our work,” and that supervisors would not sign their overtime slips. And all five nurses approximated the number of times they worked through their meal breaks.
No “sham affidavit.” Nor were the overtime estimates part of a “sham affidavit,” as the employer suggested. Rather, the named plaintiff provided a method for determining what overtime she worked during her deposition, and estimated that she worked six-to-eight hours off the clock per week. Her and the opt-ins’ estimates of their overtime were enough, particularly since the employer did not point to any directly contradictory deposition testimony.
Decertification denied. The court also rejected the employer’s contention that the FLSA opt-in class should be decertified since there were too many differences between the nurses regarding their work schedules and employment statuses. They all worked in the same unit, but only the plaintiff and one of the opt-ins worked full-time night shifts. Two of the other opt-ins worked different shifts and one was arguably part-time. The other worked “per diem.” These differences between them were insufficient to warrant decertifying the class.
The nurses each testified that the employer had a generally applied policy of not paying and/or approving overtime that the supervisors required, and ignoring their complaints about the inability to take meal breaks. Thus, common liability issues existed. Also, individualized damages inquiries do not defeat class certification in an opt-in FLSA action. Moreover, the total opt-in class here was small enough that bifurcating liability and damages would be practicable, if doing so was eventually deemed necessary.
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