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 Legal Overview of the FLSA: ● Originally enacted in 1938 as part of the “New Deal” legislation.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 : • • • • • • • • • • “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: • • • • • • • • • 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 • 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