BLOGS: Fair Labor Standards Act Law

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Friday, May 27, 2011, 3:37 PM

Where There's a Will, Is It Willful?

Under the Fair Labor Standards Act, in addition to recovery of back pay for unpaid wages or overtime, the law allows an award of "liquidated damages" (i.e., the damages are doubled) unless the employer "shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith." In addition, "willful" violations of the statute carry a three-year statute of limitations rather than a two-year one. A combination of these two circumstances can, therefore, convert a $100,000-per-year back pay exposure from $200,000 to $600,000 - hardly an academic exercise. And although the burden of showing good faith rests on the employer as a defense but the need to prove wilfillness for limitations purposes is a plaintiff's task, the actual application of the two concepts has often yielded similar results.

Until 1988, the employer could not profess to have acted in a non-willful manner if it knew the statute was "in the picture." This rule, established in the 1972 decision in Coleman v. Jiffy June Farms, was changed by the Supreme Court's opinion in McLaughlin v. Richland Shoe, which held that willfullness requires either that the employer knew its conduct violated the Act or that it acted in reckless disregard of its statutory compliance obligations.

A recent opinion from the same court which decided Jiffy June Farms nearly 40 years ago rejected a district court ruling that an employer's misclassification of several different groups of employees and trainees had been willful. The plaintiff had to prove willfulness and failed to do so, the appeals court concluded; "the district court conflated the willfullness analysis with the 'lack of good faith" analysis". The "substantial burden" the employer shows in proving its good faith in order to avoid liquidated damages is not the same as the onus upon the plaintiff to prove willfullness, and the two rules, although similar in concept, are totally unrelated. Stokes v. BWXT Pantex LLC, 17 WH Cas. (BNA) 1035 (5th Cir., May 4, 2011)(unpublished). Consequently, the conventional wisdom is neither conventional nor wise.

And if that's clear, perhaps we'll talk soon about the circumstances in which an "independent" contractor isn't independent; the willfullness issue is a breeze by comparison.

Thursday, May 26, 2011, 9:16 AM

The Latest in the Skycap Tip Dispute

Tuesday, May 10, 2011, 5:15 PM

David McCormack to Speak at S.C. Bar’s Employment Law Seminar

COLUMBIA, S.C.—Womble Carlyle attorney David McCormack is among the speakers at the South Carolina Bar’s annual Spring Employment Law Seminar. This year’s program features updates and discussion on a number of important topics by the authors of Labor and Employment Law for South Carolina Lawyers, Fourth Edition. The seminar takes place Friday, May 13th at the Bar Conference Center in Columbia.

McCormack will speak on “Title VII – Specific Employment Practices.” Other seminar topics include updates and emerging trends in FLSA, public employees, ERISA, GINA, wage payment & Ledbetter, labor-management relations, covenants not to compete, unemployment law, retaliatory discharge and ADAAA.

For more than 40 years, David McCormack has represented employers in both federal and state court and before federal and state agencies involving claims ranging from wrongful termination to employment discrimination. He also provides extensive advisory and counseling services in such areas as employment contacts, employee handbooks, restrictive covenants, family and medical leave, disability law requirements, and sexual and other unlawful harassment. He practices in Womble Carlyle’s Charleston, S.C., office.

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