NELA Amicus Briefs

NELA Amicus Brief: Monroe v. FTS USA (6th Circuit) 

07-13-2015 01:51 PM

On July 2, 2015, NELA filed an amicus brief in support of the plaintiff-appellees in Monroe v. FTS USA, LLC, No. 14-6063 (6th Cir.). This case asks the court to affirm a jury’s verdict that FTS’s company-wide policy requiring its cable technicians to work overtime hours without compensation violated the Fair Labor Standards Act (FLSA). The brief was written by NELA member Laura L. Ho and William C. Jhaveri-Weeks of Goldstein, Borgen, Dardarian & Ho in Oakland, California. NELA members Rachhana T. Srey and Paul J. Lukas of Nichols Kaster, PLLC in Minneapolis, Minnesota served as counsel at the trial level where they obtained $3.8 million in damages in this collective action.

Defendant-employer FTS USA “provides engineering services, cable installation, maintenance, splicing, sweep, certification, balancing, disconnect and customer service to the evolving cable television industry” and operates out of nearly 30 markets. A group of cable technicians working for the company alleged that “they worked an average of over 13 hours of unrecorded time each week without being paid for it” in violation of the FLSA. Based on trial testimony from many of these technicians, and other employees, a jury found that “FTS was liable under the FLSA for its company-wide practice of under-paying its technicians for overtime.” The questions on appeal are whether the plaintiffs’ trial plan was “improper” and whether the testifying plaintiffs were sufficiently “representative” enough to merit the jury’s finding. On appeal, FTS contends that the evidence produced at trial was insufficient to support the verdict. NELA asserts that FTS’s argument cannot withstand close scrutiny, and thus the Sixth Circuit should affirm the trial verdict and the rulings of the district court.

In its amicus brief, NELA emphasizes that the FLSA is a strong remedial statute (“Congress passed the FLSA with broad remedial intent.” Keller v. Miri Microsystems LLC, 781 F.3d 799, 806 (6th Cir. 2015)), and that the U.S. Supreme Court has recognized the “remedial nature of this statute and the great public policy which it embodies.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946). NELA asserts that if the FLSA’s policy of ensuring that workers are paid fairly for an honest day’s work is to mean anything, then they must have the ability to join together collectively and courts should not overturn the findings of juries when there is sufficient evidence to show commonality among the members of the collective action. Monroe is a perfect example of how the FLSA was designed to work—a group of similarly situated employees who were not properly paid for their overtime work by their employer  joined together to vindicate their rights in court based on representative testimony and evidence. The cable technicians proceeded through trial, and a jury sided with them. NELA contends that the Sixth Circuit should uphold the jury’s verdict  because in order for “the remedial purposes underlying the FLSA to be effectuated, appeals courts must be willing to affirm verdicts based upon representative proof—such proof is the only practical way of trying an FLSA collective action.”

In support of its position that the jury verdict should be affirmed, NELA advances two main arguments: (1) that the evidence presented at trial was sufficient for the jury to find the allegations representative of similarly situated technicians; and (2) that the plaintiffs were sufficiently similarly situated to support certification of a collective action.

Regarding the first argument, the plaintiffs at trial provided testimony from 17 “geographically dispersed employees, along with testimony from three managers and three administrators” showing “that cable technicians were instructed to work off-the-clock to reduce their overtime pay.” The plaintiffs also produced improperly edited time-sheets for the impacted employees. This evidence proved to the jury’s satisfaction not only that the technicians worked an average of 13 hours per week off-the-clock, but that the testimony was sufficiently representative of the class of 296 impacted employees. In supporting the argument that the evidence was sufficient, NELA cites a Sixth Circuit case involving restaurant workers making similar claims. In that case, the trial evidence related to only seven class members and the appellate court found the evidence sufficient to support a finding that the employer was liable for back wages. In other circuits, appellate courts have upheld awards when three plaintiffs testified “out of thousands” (Garcia v. Tyson Foods, Inc., 770 F.3d 1300 (10th Cir. 2014)), when seven plaintiffs testified out of 1,424 (Morgan v. Family Dollar, 551 F.3d 1233 (11th Cir. 2008)), and when 39 plaintiffs testified out of over 1,500—a 2.5% rate (Reich v. Southern New England Telecommunications Corp., 121 F.3d 58, 67 (2d Cir. 1997)). Although FTS listed 50 employees as potential trial witnesses, it did not call a single one to dispute that testimony. 

With respect to the second argument that the plaintiffs were sufficiently similarly situated to support certification of a collective action, NELA cites a Sixth Circuit decision holding that “employees are similarly situated when “their claims [a]re unified by common theories of defendants’ statutory violations, even if the proofs of these theories are inevitably individualized and distinct.” O’Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 576, 585 (6th Cir. 2009). In Monroe, the overwhelming weight of the evidence, including not only the testimony from the technicians themselves, but the testimony from three managers and three administrators, confirmed that the technicians were sufficiently similarly situated. FTS’s scheme was a “company-wide practice of failing to pay cable technicians for off-the-clock overtime, carried out through common, company-wide tactics.” FTS is not only asking the Sixth Circuit to rule against the overwhelming evidence supporting liability and damages, it is also asking it to rule against the district court’s finding that commonality supported certification. NELA contends that FTS’s argument on this issue fails as well.

#6thCircuit #WageHour #Amicus #FLSA

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