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Who Wins in Overtime?

Perhaps drawing inspiration from the college bowl games and NFL playoffs, the world of employment law lately seems fixated on the intrigue of overtime, although more in the context of bonus pay than bonus play. While it may not be as thrilling as a Hail Mary pass or as heartbreaking as a missed kick (sorry, Auburn fans) to end the game, overtime as it relates to the Fair Labor Standards Act (FLSA) can have a major impact on both employers and employees, so it’s worth taking some time out from being an armchair quarterback to look at some of the latest developments.

Two big court decisions in December went against employees looking for overtime. The first came from the US Supreme Court in Integrity Staffing Solutions v. Busk. As covered previously on this blog, the case asked whether time—up to 25 extra minutes—spent in an internal security screening line at the end of one’s shift should be compensable. In a rare move for such divergent ideologies, the justices were unanimous in rejecting the notion that time spent in the line deserves to be time on the clock.

Under the Portal-to-Portal Act, the Court said, the screenings aren’t considered compensable time because they’re neither the principal part of the job the employees were hired to do nor are they “integral and indispensable” to the employees’ duties as warehouse workers. Interestingly, the Court said that an employer requiring an employee to do something is not the principal consideration for whether the activity falls into Portal-to-Portal territory. Instead, it’s only if that activity is part of the productive work for which the employee was hired.

In the other decision, this time from the US District Court in Washington, D.C., a federal judge invalidated Department of Labor regulations regarding home care workers that were set to take effect on January 1. The new rules would have ensured minimum wages and overtime for most home care workers contracted by third parties, as opposed to live-in domestics employed directly. The judge found that the DOL overstepped its powers by drafting new regulations that conflicted with a specific “Congressionally-mandated exemption via a method Congress never envisioned.”

Obviously, such a decision only affects a small subset of the workforce (made even smaller by the narrower definition of “companionship services” left intact by the judge), but it tests the breadth of the DOL’s power to amend arcane labor rules that might otherwise go unmodified by a divided Congress. Contrast that to the Integrity Staffing decision, where the Supreme Court’s united front may spell doom for countless similar suits currently pending around the country.

A couple of overtime losses, however, didn’t stop a class action lawsuit filed last week against CVS Pharmacy on behalf of more than 1,000 of its pharmacists across the country who say they’re owed overtime wages. Seemingly much more straightforward than the Integrity Staffing case, the plaintiffs here are “floater” pharmacists who cover shifts at several stores, averaging up to 50 hours a week but getting paid the same hourly rate, even beyond the FLSA-standard 40 hours. Covering October 2011 through October 2012, if the lead plaintiff’s $60 per hour standard rate and overtime hours are representative of the 1,000 or so others, back pay of time and a half for the class could mean a $20-million-plus FLSA mistake for CVS.

While that case is far from being decided, there’s plenty of overtime and FLSA litigation going on around the country, which should say a lot about how complex the law can be and why it’s important for both employers and employees to know how it applies to them. At Mays & Kerr, our experienced Atlanta-based employment attorneys can answer your questions about FLSA, wage and hour law, FMLA, employment discrimination, and more. With offices in Atlanta and Nashville, we offer a client-centered philosophy and strive to accomplish our clients’ goals as if they are our own. If you’re in Georgia or Tennessee, contact us today at 1-877-986-5529.

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