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A federal judge in Georgia recently denied a plaintiff’s motion for conditional certification of a class-action lawsuit over wage and hour violations.

In Wallace v. Norcross Associates, LLC, the plaintiffs sought unpaid overtime wages under the federal Fair Labor Standards Act (FLSA).  Alvina Wallace and the other litigants were sales associates or sales representatives employed by Norcross Associates, a telemarketing business that sold long-term telephone service contracts for providers like Verizon.  During their employment, Wallace and the others worked on various sales campaigns geared toward business and residential customers.  In return, they received payment along several different compensation schemes, including hourly pay, hourly pay and commissions, commissions only, commissions with $10 per hour recoverable draw, and an increasing hourly rate based on the total number of products and services sold.

Under these schemes, Wallace was employed from April 2007 until March 2012, during which time she was compensated at an hourly rate, an hourly rate plus commissions, and commissions only with a $10 per hour recoverable draw.  Other litigants were paid on a commissions-only basis with a $10 per hour recoverable draw or an hourly basis plus commissions.  All involved claimed that they regularly worked more than 40 hours per week but were never paid overtime.  They also argued that their employer never paid them all of the commissions that they earned.  Their employer, for its part, claimed that it had paid the litigants for all of their time.  Nonetheless, Wallace and the other litigants sought FLSA section 216(b) class status.

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A federal court in Georgia recently denied a motion to dismiss in a case where an employee alleged wage and hour violations and sexual harassment.

In Malphurs v. Cooling Tower Systems, Inc., Amanda Malphurs worked at Cooling Tower Systems in an hourly position from November 2011 to May 2012.  Her duties included working in her employer’s warehouse, posting cooling tower lines and other equipment for sale on an auction website, and doing other office work.  During this time, Malphurs was allegedly denied overtime compensation for her work beyond eight hours in the day.  At the same time, she was allegedly exposed to “frequent, ongoing, and continuous harassing conduct of a sexual nature” by Joe Coates, the sole owner of Cooling Tower Systems.  He would require Malphurs to work long hours late into the day allegedly so they could be alone, and when Malphurs requested overtime pay, he refused to compensate her unless she acquiesced to his sexual demands.

Malphurs frequently asked Coates to stop his harassment, but Coates ignored her.  As he was her sole boss, she could not turn to anyone else to discipline or terminate him.  Finally, unable to cope with the situation any further, Malphurs quit.

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Few are aware that white male employees are among those protected by Title VII anti-discrimination language.  As long as that employee can show that he suffered adverse treatment due to his status, he may be entitled to relief.  The plaintiff in Kellett v. Memphis Light, Gas and Watertried to prove this was the case, but was unsuccessful.

Plaintiff Walter Kellett filed a complaint with the Equal Employment Opportunity Commission (EEOC) in March 2011, claiming reverse racial discrimination by his employer, Memphis Light, Gas and Water (MLGW).  Kellett argued that since his company’s reorganization, he had been treated differently than minority employees in similar positions.  This included not receiving timely compensation or reevaluation, and being retaliated against for filing internal complaints against the company.  The EEOC could not reach a conclusive determination on his claims and issued a Right to Sue notice in August 2011.  Kellett then filed a lawsuit in November 2011, alleging discrimination and retaliation under Title VII of the Civil Rights Act of 1964.  Among other things, he argued that his employer retaliated against him by placing more employees under his supervision, while not doing the same for minority supervisors.

In March 2013, a Magistrate Judge reviewed the case and issued a recommendation in December that MLGW’s motion for summary judgment be granted, effectively ending the case.  Kellett objected to the recommendation, and the case came under the district court’s review.  The district court then reviewed the Magistrate Judge’s findings and Kellett’s objections.  The Magistrate Judge found that (1) any discrimination alleged before May 2010 was time barred; (2) Kellett never offered any direct evidence of adverse employment action, or identify a minority employer who was treated more favorably; and (3) Kellett could not make the basic “prima facie” case for discrimination. Continue reading ›

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A federal court in Georgia recently granted a summary judgment motion against an employee with an age discrimination lawsuit.

In Godwin v. WellStar Health System, Inc., Mary Godwin had been working as an order puller for WellStar Health Systems since 1999.  By 2003, she had been promoted to the position of Buyer in WellStar’s Purchasing Department.  Her duties included processing orders with outside vendors for goods made by WellStar’s different departments.  In 2009, WellStar hired a new Vice President of the Supply Chain, Tony Trupiano, whose job included overseeing the Purchasing Department.  Soon after, Godwin’s supervisor expressed concerns to Trupiano about Godwin’s performance, noting that she had made some errors with purchase orders.  Later that year, the supervisor conducted an evaluation of Godwin and found her to be “below expectations.”  Soon after, that supervisor left and a new one was hired, Ken Tifft.  Tifft read the former supervisor’s comments on Godwin, but thought they lacked documentation, and thus approved a merit pay increase for Godwin.  However, Tifft would later come to share the view that Godwin was performing “below expectations.”

In September 2010, Godwin was placed on a 90-day performance improvement plan, with follow-up consultations after 30 and 60 days.  Each time, her supervisor noted improvement, but also continued concerns.  Godwin was eventually placed on a second 90-day plan in February 2011.  Later that month, Godwin provided her supervisor with a letter from her doctor stating that due to her arthritis, she needed to move around every hour.  Her supervisor responded that Godwin needed to remain visible in the Purchasing Department, which was large enough to walk through.  However, Godwin, then 63 years old, complained to the Human Resources Department that her supervisor’s comments were ageist and there was no accommodation of her need to walk.

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A Georgia state court recently dismissed a wage and hour lawsuit on the grounds that the injured parties were unable to state a claim under the Georgia Minimum Wage Law (GMWL).

In Anderson v. Southern Home Care Services, Inc., the injured parties sought to form a class action lawsuit representing all individuals employed in Georgia by the defendant from May 2004 to the present, who provide services to defendant’s clients at their residences, but who were not paid for the time spent traveling between job sites in a given day.  The defendant filed a motion for judgment on the pleadings, claiming that the lawsuit was barred by Georgia’s three-year statute of limitations.

First, the court looked at the statute of limitations issue, specifically whether two similar types of litigation applied to this case.  In 2007, another group of care workers brought a lawsuit to recover unpaid wages in Geddis v. Southern Home Care, Inc.  In November of that year, the parties entered into an agreement stating that no statute of limitations on any claim under state or federal wage law would run against members of the class.  The parties eventually reached a settlement in 2011 and the case was dismissed.  Later in 2011, two of the opt-in plaintiffs in the Geddis case filed another class-action suit, and that one settled in 2012.  If the Anderson class-action lawsuit was a part of the Geddis tolling agreement, the statue of limitations would not have run, and the injured parties would not be barred from making a claim.  The state court determined that this was the case. Continue reading ›

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Another sexual harassment retaliation case was decided recently, this one in Tennessee federal court.  In Lawson v. White, Ms. Lawson charged her director with retaliation under Title VII of the Civil Rights Act of 1964 and the Tennessee Human Rights Act after she reported being sexually harassed by another employee.  The federal district court denied Lawson’s employer’s motion for summary judgment, allowing the case to move forward.

Lawson began working for Monroe County’s EMS as a paramedic in January 2006 under former director Mr. Smith.  In August 2009, Lawson was allegedly harassed by a coworker.  After Lawson reported the harassment to Smith, Smith terminated the coworker’s employment.  During this time, defendant Randy White was employed with a privately owned ambulance service called iCare EMS.  While there, White hired and worked alongside Lawson’s former coworker.  Then in August 2010, Monroe County’s new mayor appointed White to serve as the new EMS director.  As part of the transition of a new administration, various County employees were required to submit resumes and applications to be considered for continued employment.  Roughly 50 or 60 former EMS employees did so, including Lawson.

White reviewed these employees’ resumes and conducted interviews, then based his hiring decisions on them, as well as his prior experience working with some of the applicants.  In the end, three employees were terminated, including Lawson.  White then rehired Lawson’s former coworker to fill an EMS position. Continue reading ›

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Recently, a federal court in Georgia granted in part and denied in part an employer’s motion for summary judgment, allowing a sexual harassment lawsuit to move forward.

In Bosco v. Lincare, Inc., Ms. Bosco filed a complaint alleging unlawful sexual discrimination and harassment in violation of Title VII of the Civil Rights Act of 1964.  Bosco claimed that in 2009, her supervisor grabbed her rear and attempted to kiss her, before she rebuffed him.  Later that night, her supervisor allegedly sent her a text message asking Bosco to come to his hotel room.  After Bosco refused, she claimed that her supervisor instigated a series of acts intended to punish Bosco and to undermine her authority over her subordinates.  Bosco then reported her supervisor’s actions to Lincare’s Human Resources Department in early 2010, providing copies of her phone records documenting the text.

Although she was informed that the incident would be investigated, no action was taken toward her supervisor, and his allegedly retaliatory behavior increased.  After Bosco failed to meet her 60-day goals, her employment was terminated in July 2010.  Bosco then filed for discrimination with the Equal Employment Opportunity Commission (EEOC) before finally filing a lawsuit after receiving her right to sue letter.   Continue reading ›

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A federal court in Tennessee’s ruling on attorney’s fees should be of concern to anyone who wishes to bring a wage and hour lawsuit.  In Stewart v. CUS Nashville, LLC, Judge Trauger of the Middle District of Tennessee found that since the named plaintiff did not succeed in proving all of her claims, her attorneys should receive just 30% of their requested fees.

The case began in 2011, when plaintiff Misty Blu Stewart filed a complaint on behalf of herself and similarly situated employees, both past and current, of the “Coyote Ugly Saloons” nationwide.  She claimed that waitresses and bartenders, as a matter of company policy and in violation of the Fair Labor Standards Act (FLSA), were forced to share their tip pool with security guards, and also to work off of the clock without compensation.  The defendants responded by filing a motion to dismiss the tip pool claims, stating that security guards met the standard of being employees who customarily received tips, and could therefore share in the tip pool.

The case eventually went to trial in April 2013 after an extensive period, during which the court certified a national class of plaintiffs for the tip pool claims and a Tennessee-based class of plaintiffs for the off-the-clock claims.  Stewart also filed an amended complaint that added three retaliation claims under the FLSA’s anti-retaliation provision to the existing claims. Continue reading ›

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The Tennessee Court of Appeals at Jackson recently upheld a summary judgment motion against an employee who had claimed her employer retaliated and interfered with her leave in violation of the Tennessee Disabilities Act.

In Jones v. Sharp Electronics Corporation, Lataynia Jones was an employee at Sharp Electronics Corporation from 1996 until her termination in November 2009.  During her time of employment, she was a member of the International Brotherhood of Electrical Workers and, like all union members, covered under a collective bargaining agreement.  The collective bargaining agreement granted employees 140 days of leave, including 56 in addition to the 12 weeks of leave permitted by the Family and Medical Leave Act (FMLA).  Jones was granted leave under the FMLA multiple times beginning September 2003.

In 2008, Jones took 11 days of leave in October, two weeks of leave in November, and then nearly two months from the end of November through January 19, 2009.  In September 2009, Jones requested additional leave under the FMLA, stating that she suffered from depression.  Her employer approved a leave time from September 20, 2009 through October 19, 2009.  However, Jones was advised that after October 19 her leave time under the FMLA would be exhausted, and that she had used 26 days of leave under the collective bargaining agreement.  Though she had 30 days of collective bargaining agreement leave remaining, Sharp informed Jones that she would be expected to return to work on October 20, and that any further leave would be at Sharp’s discretion.  Continue reading ›

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A federal court in Tennessee recently certified a group of call center employees as a class under the Fair Labor Standards Act (FLSA), clearing the first hurdle in their class-action lawsuit.  While most federal class-action lawsuits must meet the requirements of Federal Rule of Civil Procedure 23, class-action lawsuits under the FLSA must instead meet the standards of FLSA section 216(b). 

In Rice v. Cellco Partnership, the employees seeking to form a class worked in the Cellco Murfreesboro, Tennessee call center, where they claimed that they were routinely required to perform work “off of the clock” that was actually compensable.  In particular, the employees needed to arrive at their desks at least 15 minutes (and most often 20 to 30 minutes) before their shift began for the purpose of preparing to log onto the Rockwell phone system and take their first calls.  The employees were allegedly disciplined if they were not prepared to take their first call at the start time, and were not allowed to include any time not reflected in the Rockwell phone system.  The employees were allegedly required to check for work-related emails before and after work and during their lunch breaks, for which they were not compensated.  If they logged the actual time they spent working, the employees were disciplined.  Finally, the employees claimed that although they were paid for part of their overtime hours, they were not paid for all of them.

The employees requested that the federal court conditionally certify the action as a collective action under the FLSA and authorize them to send notice to all current and former employees who had worked as customer service representatives for Cellco during the past three years.  Meanwhile, Cellco argued that the employees failed to meet their burden for conditional certification, in that they could not establish that they were similarly situated to the proposed class, or that Cellco had a common policy to violate its lawful policies.  Continue reading ›

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