Eighth Circuit Finds Employee's Lawsuit Failed to Allege Actionable FLSA Retaliation

Lisa Ritchie filed a lawsuit against her former employer, St. Louis Jewish Light, and Larry Levin, her former supervisor under the Fair Labor Standards Act claiming that her employment was terminated in retaliation for insisting on recording her overtime work. Jewish Light and Levin filed a motion to dismiss arguing that informal complaints about overtime to a supervisor do not constitute “protected activity” under the FLSA. The trial court agreed and dismissed Ms. Ritchie’s complaint.

On appeal, the Eighth Circuit declined to decide whether informal complaints could, in fact, constitute “protected activity” under the FLSA finding instead that Ms. Ritchie’s complaint actually failed to allege that Ritchie made any sort of complaint to either Levin or St. Louis Jewish Light. Instead, the court found that “ the only complaining asserted in her pleading goes the other way--Levin complaining to Ritchie.” Concluding that “[R]ather than constituting an affirmative complaint that would trigger the anti-retaliation provision of the FLSA, [Ms. Ritchie’s] recording of overtime could be nothing more than mere insubordination, she having been instructed to the contrary . . . Insubordination is not protected under the FLSA,” the court affirmed the dismissal of the suit. The court further noted that “. . . if merely recording one's overtime is a ‘complaint’ that triggers the anti-retaliation provision of the FLSA, an employer would not be able to discipline an employee for working unauthorized overtime so long as the employee recorded the overtime.”

Ritchie v. St. Louis Jewish Light, No. 10-1356 (8th Cir. Jan. 4, 2011).

Court Conditionally Certifies Multi-State Class in Overtime Action Against Commonwealth

In Jost v. Commonwealth Land Title Insurance Company, 2009 WL 211943, No. 4:08CV734 (E.D.Mo. Jan. 27, 2009), four former St. Louis area escrow officers sued Commonwealth under the Fair Labor Standards Act claiming that they were encouraged to work, but not report, overtime. The plaintiffs sought conditional certification of their case as a nationwide collective action so that they could notify other past and present Commonwealth employees of the opportunity to “opt in” as plaintiffs in the litigation.

In support of their request, the plaintiffs submitted affidavits alleging that managers of Commonwealth’s St. Louis offices actively encouraged unpaid, unreported overtime. Plaintiffs also submitted evidence of similar practices in Commonwealth offices outside of Missouri.

The court declined to certify a nationwide class primarily because Commonwealth had a written policy requiring employees to accurately report all hours worked and barring management from requiring any employee from working off the clock. Additionally, the court found that plaintiffs failed to present any evidence suggesting that supervisors nationwide disregarded the written overtime policy.

However, the court concluded that the plaintiffs’ affidavits and deposition testimony were sufficient to support conditional certification of a class of all residential escrow officers (or those whose job it was to close residential loans or prepare loan paperwork for residential closings) who worked in Commonwealth’s offices in Missouri, Michigan, Kansas, Wisconsin, and Nebraska from May 21, 2005 to the present.

Court Awards Attorney's Fees in Excess of Damages in FLSA Case

In Urnikis-Negro v. American Family Property Services, Inc., No. 06 C 6014, Jan. 26, 2009 (N.D. Ill. 2009), Ms. Urnikis-Negro sued her former employer and two of its principals for $90,000.00 in unpaid overtime wages under the Fair Labor Standards Act. In addition to the unpaid overtime, Ms. Urnikis-Negro asked that her damages be doubled under the FLSA’s liquidated damages provision. The court found in Urnikis-Negro’s favor on the question of liability, but concluded that she worked far fewer hours of overtime than she claimed at trial. Pursuant to the “fluctuating hours” method set forth in the Department of Labor regulations, the court awarded Urnikis-Negro $12,233.00 in unpaid overtime, and doubled the amount to $24,466.00.

Urnikis-Negro then petitioned the court for an award of attorney’s fees and expenses which are also recoverable under the FLSA. Although the court rejected American Family’s argument that the fee award should not exceed the damage award, it acknowledged that it would consider “the degree of success Urnikis-Negro achieved” in determining an appropriate fee award. The court ultimately awarded Urnikis-Negro nearly $60,000.00 less in fees and costs than she was seeking and refused to reduce the award further in light of Urnikis-Negro’s relatively modest recovery. In support of its decision, the court noted that

Recoveries in individual FLSA suits like this one typically are modest; they involve cases in which a law-flouting employer has, in essence, tried to nickel-and-dime his employee. With that backdrop, limiting recoverable fees when a plaintiff recovers relatively modest damages in a FLSA case would create a significant disincentive for lawyers to take on such litigation, which, in turn, would undermine Congress’ intent in creating the statute and authorizing private enforcement actions.