Fair Labor Standards Act
29 U.S.C., 201 et seq.
THE FAIR LABOR STANDARDS ACT
29 U.S.C. 201, et seq.
The FLSA: Does It Apply State Troopers and what
does it require?
Presentation to the National Troopers Coalition
Sept. 9/14/10 Portsmouth NH
by
Molan, Milner & Krupski, PLLC
Glenn R. Milner, Esq. John S. Krupski, Esq.
Can the States’ be sued for violating the
FLSA?
●  Legal Overview/Background
●  Key Components of the FLSA
 Overtime/Anti-retaliation/Enforcement
 Compensable Hours of Work
●  The “New Federalism”
 The bad, the good & the ugly
 National League of Cities
 Garcia
 Alden v. Maine
 Alden: the new rules
What can we do going forward?
Legal Overview of the FLSA:
●  Originally enacted in 1938 as part of the “New
Deal” legislation. Applied to private sector only.
●  The “Portal to Portal” law enacted in 1947 to fill in
some gaps in the FLSA, including definition of
“work” and “workweek” and establishing a statute of
limitations.
●  Amended in 1966 to cover certain governmental
agencies – schools and hospitals.
●  In 1974, Congress extends the FLSA to
specifically include state and local governments as
“employers”
●  The 1974 and 1985 amendments include special
rules for law enforcement, fire and correctional
employees.
(7(k) exemption, use of comp time)
Key Components of the FLSA:
Section 206 set the minimum wage.
Section 207 requires time and one-half of the “regular
rate” for “hours worked” over 40 per week….
except for law enforcement (and fire, correctional
employees);
207(k) provides government employers, including states,
with a partial overtime exemption: overtime not required
until after 171 hours worked during a 28 day work
period. 29 CFR §553.230(c).
● NHTA CBA sets work period at 160 hours
over 28 days.
Section 215(a)(3) protects employees who have “filed
any complaint or instituted … any proceeding under or
related to the FLSA”
Direct or circumstantial evidence good enough
(Hackney v. Arlington County P.D.)
Section 216(b) allows for an award of attorney fees and
costs to successful litigants.
Liquidated damages available equal to the unpaid
wages or overtime where bad faith is found. 29 U.S.C.
§260.
The FLSA and Collective Bargaining Agreements:
The FLSA sets out only the minimum that is required
concerning work rates, work hours and overtime. More
generous provisions in CBA’s, of course, control. The
FLSA would also “fill in the gaps” in areas not addressed
by contract.
“…the rights … guaranteed by the FLSA are not
rights subject to contract. Instead, those rights are
independent of, and superior to, contract
arrangements…”
Wahl v. City of Wichita
However, “more generous” payments made
pursuant to a CBA can be used as a “set off”
against any monies owed under the FLSA
otherwise.
NHTA CBA: ● work period is 160/28
● paid leave counts
● portal to portal
● out of town travel
Compensable Hours of Work:
Generally “hours worked” under the FLSA is considered to be all
time spent in physical or mental exertion, whether burdensome or
not, which is controlled or required by the employer.
The FLSA does not itself define the term “work” but states to
“employ” is to “suffer or permit to work”. 29 U.S.C. § 203(g).
CAVEAT: The Portal to Portal Act (29 U.S.C. § 251) exempts
from the FLSA “preliminary and postliminary” work that is not a
“principal work activity.”
This area of the law is highly regulated by federal regulation:
29 CFR 785 Hours of Work
29 CFR 790 Effect of Portal to Portal
These issues are, in recent years, the most
litigated regarding the FLSA :
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“Donning and doffing”
Canine Programs
Shift briefing and roll calls
On-call status
Maintaining uniforms & weapons
Out-of-town travel
Academy training
Meal periods
Exercise time
Travel to and from work
The New Federalism: The Bad:
National League of Cities (1976)
• U.S. Supreme Court, overruling prior cases, held
Congress lacked authority to “impose” the FLSA upon
state and local governments;
• Case established complex balancing test between
supremacy clause and state’s ability to provide and
regulate essential governmental functions.
The New Federalism: The Good:
San Antonio v. Garcia (1985)
• Court expressly overruled National League of
Cities; holds that there are adequate safeguards to
protect state’s rights but federal law must be
supreme;
• Justice Rehnquist dissents and states the principles
of federalism as set out in National League of Cities ,
“will, I am confident, in time again command the
support of the majority of this Court”.
The New Federalism: Can the States be sued
for FLSA violations?
Background
• FLSA specifically states that suits may be brought in
State or Federal courts against “employers” including
“public agencies” and the State. 29 U.S.C. § 216(b);
• But, the 11th Amendment (US Constitution) forbids
suits against unconsenting States in federal court;
Amendment XI. Suits against states —
Restriction of Judicial power.
The judicial power of the United
States shall not be construed to extend
to any suit in law or equity, commenced
or prosecuted against one of the United
States by citizens of another state, or by
citizens or subjects of any foreign state.
So, we simply had to file FLSA
cases in state courts… until ……..
Alden v. Maine
• Probation officers sued the State of Maine for FLSA
violations (overtime claims) in federal court;
• Case was dismissed on sovereign immunity grounds;
• Plaintiff's re-filed in state court;
• U.S. Supreme Court ruled that Maine – a nonconsenting state – may not be sued for FLSA
violations in state court. The 11th Amendment, the
Court ruled, is only one-half of a state’s immunity. By
“constitutional design” state’s immunity extends to
cases filed in its own courts as well.
Alden v. Maine
• ISSUE: Does Congress's Article I power authorize it
to abrogate the states' immunity from suit on federal
claims in their own courts?
• HOLDING AND DECISION: (Kennedy, J.) No.
Immunity from suit was a fundamental aspect of
sovereignty that the states enjoyed before the
ratification of the Constitution and that they retained
after ratification;
• RULE OF LAW Congress's Article I power does not
authorize it to abrogate the states' immunity from suit
on federal claims in their own courts.
•  Rehnquist prediction comes true!
Alden: The New Rules
• Alden did not send the FLSA to the scrap heap.
The FLSA still applies to the states, we just can’t
sue them for money damages for FLSA violations;
-- private class actions (the FLSA’s biggest
weapon) are not permitted.
• The Alden majority says not to worry, have trust in
the good faith of state government;
• USDOL can bring an action in State or Federal
Court
• States can still be sued under the FLSA for
injunctive and declaratory relief;
Individual state actors may still be sued for
money damages under the FLSA – but other
immunities and indemnification laws would
probably prevent those.
Alden and the New Federalism applies to other
federal laws:
- ADA
- ADEA
- FMLA
- others not part of 14th Amendment or
passed pursuant to US CONST art 5.
Alden Court : Trust the States!
The constitutional privilege of a State to assert its
sovereign immunity in its own courts does not confer upon
the State a concomitant right to disregard the Constitution
or valid federal law. The States and their officers are
bound by obligations imposed by the Constitution and by
federal statutes that comport with the constitutional design.
We are unwilling to assume the States will refuse to honor
the Constitution or obey the binding laws of the United
States. The good faith of the States thus provides an
important assurance that "[t]his Constitution, and the Laws
of the United States which shall be made in Pursuance
thereof . . . shall be the supreme Law of the Land."
Alden heavily criticized
•  There are no assurances state governments
will comply with federal law – reality is
States have at times violated federal law.
•  Souter’s dissent : another prediction!
•  Trust in the good faith of state government
to follow FLSA is no assurance at all.
•  James Madison: “If people were angels
there would be no need for a Constitution”.
The Federalist No. 51
Post-Alden Cases:
Virginia v. Luzik (Ouch, that hurts)
• Probation officers sue State of Virginia in 1992
for FLSA violations and win – to the tune of
hundreds of thousands of dollars in back pay and
over a quarter million in attorney fees.
• While on appeal, the U.S. Supreme Court decides
Alden. The award in Luzik thrown out.
• Luzik also finds no waiver by Virginia under
statute that allows contract claims against the
state.
Bailey v. Gulf Coast
• 11th Circuit says injunctive relief only available
under the FLSA anti-retaliation provisions – not the
back wages section.
Cockrell v. New Mexico
• No waiver based on state’s acceptance of breach of
contract claims.
Alston v. New York
• Parole officers suit under FLSA thrown out – no
waiver under general Court of Claims Act because
case not filed within the Act’s statute of limitations.
College Savings Bank
• U.S. Supreme Court sets waiver bar high: states need
to by “clear declaration” waive suit expressly in
federal court.
Williams v. Oklahoma
• No waiver of FLSA immunity even where
administrative rule instructs agency to fully comply
with provisions of FLSA.
Whittington v. New Mexico State Police
• No FLSA waiver based on contract claims – state
administrative board.
Has N.H. waived its Alden immunity?
• Maybe…..
• Standard is very high
• References in CBA and Administrative Rules most
likely not good enough
• General “Court of Claims” statute held not sufficient
• N.H. District Court has ruled no waiver in New
Hampshire regarding FMLA.
•  Consider Waiver Bill Legislation ?
Post Alden Legislative efforts:
•  110th Congress (2007 - 2008)
•  Civil Rights Act of 2008 – Amends the Age
Discrimination in Employment Act of 1967 (ADEA), and
the Fair Labor Standards Act of 1938 (FLSA) to provide
that a state's receipt or use of federal financial assistance
for a state program or activity constitutes a waiver of
sovereign immunity for a suit by a program employee.
•  Latest Major Action: 2/4/2008 Referred to House
subcommittee. Status: Referred to the Subcommittee on
the Constitution, Civil Rights, and Civil Liberties.
•  Bill dies …..
Post Alden Legislative efforts:
•  Minnesota : leading the way!
•  Introduces and passes first waiver bill
•  Union backed effort adopts ‘under the
radar’ strategy
•  Sponsor: ‘why should our employees enjoy
less rights than we force the private sector
to give their employees? Why should
government be a bad employer?
Minnesota Statutes:
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1.05 WAIVER OF IMMUNITY FOR VIOLATIONS OF CERTAIN FEDERAL STATUTES.
Subdivision 1.Age Discrimination in Employment Act.
An employee, former employee, or prospective employee of the state who is aggrieved by the state's
violation of the Age Discrimination in Employment Act of 1967, United States Code, title 29,
section 621, et seq., as amended, may bring a civil action against the state in federal court or in any
other court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes
of the act.
Subd. 2.Fair Labor Standards Act.
An employee of the state who is aggrieved by the state's violation of the Fair Labor Standards Act of
1938, United States Code, title 29, section 201, et seq., as amended, may bring a civil action against
the state in federal court or in any other court of competent jurisdiction for such legal or equitable
relief as will effectuate the purposes of the act.
Subd. 3.Family and Medical Leave Act.
An employee, former employee, or prospective employee of the state who is aggrieved by the state's
violation of the Family and Medical Leave Act, United States Code, title 29, sections 2601 to 2654,
as amended, may bring a civil action against the state in federal court or in any other court of
competent jurisdiction for such legal or equitable relief as will effectuate the purposes of the act.
Subd. 4.Americans with Disabilities Act.
An employee, former employee, or prospective employee of the state who is aggrieved by the state's
violation of the Americans with Disabilities Act of 1990, United States Code, title 42, section 12101,
as amended, may bring a civil action against the state in federal court or in any other court of
competent jurisdiction for such legal or equitable relief as will effectuate the purposes of the act.
North Carolina is next :
•  Another low key approach – bill sails
through House (108-2) and Senate (46-0).
•  No press, bi partisan support, slim
Democratic majorities in both chambers,
Gov. Jim Hunt signs into law in 2001.
•  “The State Employee Federal Remedy
Restoration Act” becomes law.
North Carolina Statutes
§ 143-300.35. State Employee Federal Remedy Restoration Act.
(a) The sovereign immunity of the State is waived for the limited purpose
of allowing State employees, except for those in exempt policy
-making positions designated pursuant to G.S. 126-5(d), to maintain
lawsuits in State and federal courts and obtain and satisfy judgments
against the State or any of its departments, institutions, or agencies
under: (1) The Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (2)
The Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.
(3) The Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (4)
The Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.
(b) The amount of monetary relief a State employee receives under
subsection (a) of this section shall not exceed the amounts authorized
under G.S. 143-299.2 or the amounts authorized under the applicable
federal law under this section, whichever is less.
Illinois: State Lawsuit Immunity Act
Sec. 1.5. Exceptions; State employees.
(a) An employee, former employee, or prospective employee of the State who is aggrieved by any conduct
or action or inaction of the State that would constitute a violation of the Age Discrimination in
Employment Act of 1967, 29 U.S.C. 621 et seq., as amended, if committed by an employer covered
by that Act may bring an action under the Age Discrimination in Employment Act of 1967 against
the State in State circuit court or federal court.
(b) An employee of the State who is aggrieved by any conduct or action or inaction of the State that
would constitute a violation of the Fair Labor Standards Act of 1938, 29 U.S.C. 201 et seq., as
amended, if committed by an employer covered by that Act may bring an action under the Fair
Labor Standards Act of 1938 against the State in State circuit court or federal court.
(c) An employee, former employee, or prospective employee of the State who is aggrieved by any conduct
or action or inaction of the State that would constitute a violation of the Family and Medical Leave
Act, 29 U.S.C. 2601 et seq., as amended, if committed by an employer covered by that Act may
bring an action under the Family and Medical Leave Act against the State in State circuit court or
federal court.
(d) An employee, former employee, or prospective employee of the State who is aggrieved by any
conduct or action or inaction of the State that would constitute a violation of the Americans with
Disabilities Act of 1990, 42 U.S.C. 12101 et seq., as amended, if committed by an employer covered
by that Act may bring an action under the Americans with Disabilities Act of 1990 against the State
in State circuit court or federal court.
(e) An employee, former employee, or prospective employee of the State who is aggrieved by any
conduct or action or inaction of the State that would constitute a violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000e et seq., as amended, if committed by an employer covered by
that Act may bring an action under Title VII of the Civil Rights Act of 1964 against the State in State
circuit court or federal court.
Other efforts:
•  Maine : post Alden, Maine passes bill to pay plaintiffs ($282,000)
(John Alden received 26 bucks) and introduced broad immunity
waiver bill in 2000 (maybe too broad)– vetoed by Gov. King. 2002
effort more successful resulting in a compromise bill passing beefing
up State laws to mirror FLSA protections for State employees.
•  Missouri : three efforts for ADA inspired waiver bill do not pass both
chambers in 2001, 2002, and 2003. Perhaps bill too narrowly focused
on ADA to garner wider support.
•  Rhode Island : very broad waiver bill (2001) passes both chambers
but vetoed by Governor – but State laws permit some recovery.
•  California : Terminator Governor vetoes third attempt at waiver bill in
2005 – but State laws expanded.
•  Alabama : home of the Garrett case that Alden’d the ADA; bill
introduced to strengthen State law derailed by ‘trial lawyer’ scare.
•  New York : annual ADA waiver bill killed by the Senate (2001-2008).
Latest effort: Wisconsin
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SB 19 :
103.10 (15) STATE LIABILITY UNDER FEDERAL FAMILY AND MEDICAL LEAVE ACT.
The state may be sued in a federal or state court of competent jurisdiction for a violation of the
federal Family and Medical Leave Act of 1993, 29 USC 2601 to 2654, and, in an action for a
violation of that act, is liable for all remedies that are available for such a violation to the same
extent that a public entity other than a state is liable. SECTION 2. 109.115 of the statutes is created
to read: 109.115 State liability under Federal Fair Labor Standards Act. An employer, as defined in
s. 103.01 (1) (b) or 104.01 (3) (b), may be sued in a federal or state court of competent jurisdiction
for a violation of the federal Fair Labor Standards Act, 29 USC 201 to 219, and, in an action for a
violation of that act, is liable for all remedies that are available for such a violation to the same
extent that a public entity other than a state is liable. SECTION 3. 111.40 of the statutes is created to
read: 111.40 State liability under federal age and disability discrimination laws. The state or an
agency, as defined in s. 111.32 (6) (a), may be sued in a federal or state court of competent
jurisdiction for a violation of the federal Age Discrimination in Employment Act of 1967, 29 USC
621 to 634, or Title I of the federal Americans with Disabilities Act of 1990, 42 USC 12111 to
12117, and, in an action for a violation of either of those acts, is liable for all remedies that are
available for such a violation to the same extent that a public entity other than a state is liable.
Bill killed by Senate in 2010.
Practice Pointers and What’s Next
•  Maintain always that the FLSA applies whether you
have a waiver law or not.
•  Continue to beef up CBA on FLSA and other federal
law type protections.
•  Assess whether FLSA violations surpass other nonFLSA required payments.
•  Consider continuing Legislative efforts - perhaps
including FLSA immunity waiver in law enforcement
bill of rights !
Questions ?
For more information please visit :
www.molanmilner.com