The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES DEPARTMENT OF LABOR,
Plaintiff,
v. CIVIL ACTION NO. 1:17CV25
(Judge Keeley)
FIRE & SAFETY INVESTIGATION
CONSULTING SERVICES, LLC; and
CHRISTOPHER HARRIS, Individually
and as Owner of Fire & Safety
Investigation Consulting Services, LLC,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
In this case, the United States Department of Labor (“DOL”)
alleges that the defendants, Fire & Safety Investigation Consulting
Services, LLC (“Fire & Safety”), and Christopher Harris (“Harris”),
violated the provisions of the Fair Labor Standards Act (“FLSA” or
“the Act”) by failing properly to pay their employees overtime
compensation. The defendants deny these allegations, contending
that they permissibly paid their employees a fixed rate for a set
amount of overtime, and often paid their employees in excess of
what the Act requires.
Pending are the parties’ competing motions for summary
judgment. For the reasons that follow, the Court GRANTS in part and
DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
DENIES in part the DOL’s motion (Dkt. No. 51), and DENIES the
defendants’ motion (Dkt. No. 47).
I. FACTUAL AND PROCEDURAL BACKGROUND
Harris received his master’s degree in safety management from
West Virginia University in 2001, and holds a number of
certifications in the safety and fire investigation industries
(Dkt. No. 52-3 at 13-14). After garnering experience as a fire
investigator and firefighter, Harris founded Fire & Safety in
Bridgeport, West Virginia, in 2008 (Dkt. Nos. 52-1 at 2; 52-3 at
15-20). Fire & Safety provided fire investigation and security
guard services in the oil and gas industry for several years. Then,
around 2013, it began to employ environmental site safety
consultants (Dkt. No. 52-3 at 23), to provide “onsite safety and
environmental consulting services for the oil and gas industry” in
West Virginia and Pennsylvania (Dkt. No. 52-1 at 3).
Consultants could be assigned to several phases of an oil and
gas operation, “such as drilling, hydraulic fracturing, coil
tubing, WSU, drill out, construction, midstream, production etc.,
based on their knowledge and experience” (Dkt. No. 52-2 at 3). For
each phase, a consultant conducted site safety inspection and
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DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
hazard identification, as well as job safety analysis review and
coaching. Id. Consultants were also involved in environmental
monitoring, accident investigation, and the documentation of daily
events. Id. at 3-4. As described by Harris, Fire & Safety provided
consultants to oil and gas operators to “observe, document and
report” whether contractors were “in compliance with recommended
safety practices” (Dkt. No. 52-3 at 25).
From December 23, 2014, through December 6, 2016, consultants
were regularly scheduled to work on the basis of what is known in
the oil and gas industry as a “hitch.” See id. at 38-39. More
particularly, Fire & Safety assigned the consultants to work 12
hours per day for 14 consecutive days, to be followed by 14
consecutive days off. This schedule resulted in an 84-hour workweek
and a total of 168 hours during every two-week hitch (Dkt. No. 52-2
at 8). Although Fire & Safety initially paid all of its employees
primarily on the basis of straight time and overtime rates, it
eventually transitioned to a payment scheme and paid consultants on
the basis of a “hitch rate” (Dkt. No. 52-5 at 32). In fact, a
number of employment offer letters issued by Fire & Safety from
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DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
2014 through 2016 communicated the prospective employee’s rate of
pay as a fixed amount per hitch (Dkt. No. 52-4 at 2-24).1
If a consultant worked less than a full 168-hour hitch, Fire
& Safety adjusted the employee’s pay pursuant to a “blended rate.”
To calculate the consultant’s blended rate, the company divided his
hitch rate by 168, the total number of hours normally worked in a
hitch. If a consultant did not work exactly 168 hours in a hitch,
his pay would be determined by multiplying the number of hours he
actually worked by his blended rate (Dkt. No. 52-5 at 44-50). For
instance, a consultant usually paid $5,000 per hitch would have a
blended hourly rate of $29.76. If that particular consultant worked
only 6 days of a 14-day hitch, he was paid $2,142.72. Id. at 51-52.
In October 2015, an anonymous consultant complained to the DOL
Wage & Hour Division that Fire & Safety was violating the FLSA by
failing to pay overtime (Dkt. No. 47-9). Wage & Hour Investigator
Karen Mathes (“Mathes”) was assigned to the case on December 11,
2015, and first met with the defendants on January 21, 2016, to
review records and ensure their compliance with the Act (Dkt. No.
1 The parties contest whether the hitch rates found any basis
in straight time and overtime rates. See infra Part III.B.
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DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
52-8 at 52-53, 175). Ultimately, Mathes determined that Fire &
Safety had failed to pay proper overtime and keep accurate records,
and calculated back wages due in the amount of $855,684.16. Id. at
176. Although Fire & Safety agreed to take corrective action in the
future, it refused to pay the back wages. In a Compliance Action
Report dated January 26, 2017, Mathes recommended that the DOL
litigate the case. Id. at 175-77.
The DOL filed the pending complaint against Fire & Safety and
Harris on February 22, 2017 (Dkt. No. 1). Although, as the
defendants have noted, the DOL’s complaint is not a model of
clarity, the upshot of its allegations is that the defendants
improperly paid the consultants the same hourly rate for overtime
work that it paid them for regular work. Id. at 3-5. In support of
this allegation, the DOL attached to the complaint “Schedule A,”
which listed 68 employees who allegedly had not been paid proper
overtime wages. Id. at 8-9. As relief, the DOL sought back wages,
liquidated damages, and an injunction. Id. at 6-7.
Following discovery, the parties filed motions for summary
judgment, which are now fully briefed and ripe for review (Dkt.
Nos. 47; 51). In addition, the defendants have moved for attorney’s
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DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
fees and costs, and have filed an objection to the DOL’s Revised
Schedule A (Dkt. Nos. 49; 60; 66).
II. LEGAL FRAMEWORK
The FLSA was enacted “to protect all covered workers from
substandard wages and oppressive working hours” by requiring a
minimum wage and limiting the number of “hours an employee may work
without receiving overtime compensation.” Trejo v. Ryman
Hospitality Props., Inc., 795 F.3d 442, 446 (4th Cir. 2015)
(quoting Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S.
728, 739 (1981)). As relevant to this action, the Act provides:
[N]o employer shall employ any of his employees who in
any workweek is engaged in commerce or in the production
of goods for commerce, or is employed in an enterprise
engaged in commerce or in the production of goods for
commerce, for a workweek longer than forty hours unless
such employee receives compensation for his employment in
excess of the hours above specified at a rate not less
than one and one-half times the regular rate at which he
is employed.
29 U.S.C. § 207(a)(1).
An “employer” is “any person acting directly or indirectly in
the interest of an employer in relation to an employee,” and an
“employee” is “any individual employed by an employer.” Id.
§ 203(d), (e)(1). The Act defines an “enterprise” as “the related
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DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
activities performed (either through unified operation or common
control) by any person or persons for a common business purpose.”
Id. § 203(r)(1). An enterprise is subject to the FLSA if it is
“engaged in commerce or in the production of goods for commerce,”
which means that it “has employees engaged in commerce or in the
production of goods for commerce, or that [it] has employees
handling, selling or otherwise working on goods or materials that
have been moved in or produced for commerce by any person,” and “is
an enterprise whose annual gross volume of sales made or business
done is not less than $500,000.” Id. § 203(s)(1)(A).
There is no dispute that the employees of Fire & Safety are
covered by the FSLA. In their answer, the defendants admitted that
Fire & Safety is an “enterprise” subject to the provisions of the
FLSA (Dkt. No. 15 at 2). They have further admitted that their
“employees regularly use goods and supplies from out of state, such
as company owned vehicles, company owned laptops, phones, tools,
safety gear, pens, pencils, and paper,” and that Fire & Safety’s
“gross volume of sales made or business done was not less than
$500,000 for each of the years 2013, 2014, 2015 and 2016" (Dkt. No.
52-1 at 3).
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DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
Nor do the defendants dispute that Harris himself qualifies as
an “employer” subject to liability under the Act. To effectuate the
remedial purpose of the FSLA, the Fourth Circuit broadly construes
the meaning of its terms. See Schultz v. Capital Int’l Sec., Inc.,
466 F.3d 298, 304 (4th Cir. 2006). During the relevant time, Harris
was the 100% owner of Fire & Safety; was responsible for hiring,
directing work, and controlling the schedules of certain employees;
determined the rate and method of pay for employees; and was
responsible, in part, for assigning, scheduling, and supervising
work (Dkt. Nos. 15 at 2; 52-1 at 3-4; 52-2 at 12). This is more
than sufficient to satisfy the definition of an “employer” under
the Act. Accord Hugler v. Dominion Granite & Marble, LLC, No.
1:17CV229, 2017 WL 2671300, at *3 (E.D. Va. June 21, 2017).
Therefore, the Court concludes that Harris is an employer within
the meaning of the Act.
III. DISCUSSION
A. Objection to Revised Schedule A
On February 22, 2018, the DOL filed Revised Schedule A, which
contains three additional employees, Thomas Archer, Dwayne
Clements, and Christopher Oliverio. According to the DOL,
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DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
“[i]nformation received subsequent to the filing of the Secretary’s
complaint has revealed that these three employees of the Defendants
are owed back wages for violations of the [FLSA] as alleged in the
complaint in addition to the employees identified in the original
Schedule A” (Dkt. No. 60 at 1). The defendants have objected to the
DOL’s addition of the three employees, arguing that, by filing
Revised Schedule A, the DOL has essentially amended the complaint
after motions for summary judgment have been filed (Dkt. No. 66).
The allegations in the original complaint, however, were not
confined to those employees specifically listed in Schedule A. In
addition to referencing “certain present and former employees
listed in the attached Schedule A,” the complaint indicated that
back wages and liquidated damages may be due for “certain present
and former employees presently unknown” (Dkt. No. 1 at 6).
Therefore, there has been no attempt by the DOL to amend its
complaint by filing a Revised Schedule A, and the Court OVERRULES
the defendants’ objection (Dkt. No. 60).
B. Motions for Summary Judgment
Both the DOL and the defendants have moved for summary
judgment. Summary judgment is appropriate where the “depositions,
9
DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other
materials” establish that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a), (c)(1)(A). When ruling on a motion for
summary judgment, the Court reviews all the evidence “in the light
most favorable” to the nonmoving party. Providence Square
Associates, LLC v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000).
The Court must avoid weighing the evidence or determining its truth
and limit its inquiry solely to a determination of whether genuine
issues of triable fact exist. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court of the basis for the motion and of establishing the
nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the non-moving party “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 256 (internal quotation marks and citation omitted).
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DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
The “mere existence of a scintilla of evidence” favoring the non-
moving party will not prevent the entry of summary judgment; the
evidence must be such that a rational trier of fact could
reasonably find for the nonmoving party. Id. at 248–52.
1. Whether the Defendants Violated the FLSA by Failing to
Pay Their Employees an Overtime Premium.
The parties each contend that they are entitled to summary
judgment regarding the question of whether the defendants violated
the FLSA by failing to pay the consultants overtime compensation.
The DOL insists that Fire & Safety failed to pay overtime because
it “paid employees the same hourly rate for every hour they worked,
regardless of whether they worked fewer than 40 hours in a workweek
or more than 40 hours” (Dkt. No. 52 at 12). The defendants contend
that they properly paid a fixed rate per hitch, which was based on
both straight time and overtime wages, and actually overpaid the
consultants when utilizing the blended rate (Dkt. No. 47-1).
a. Evidence That the Defendants Complied with the FSLA
by Using a Fixed Rate.
As discussed, the FLSA requires employers to pay their
employees an overtime premium of one and one-half times the
“regular rate” for hours worked in excess of 40 during any given
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DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
week. 29 U.S.C. § 207(a)(1). “That requirement was meant ‘to spread
employment by placing financial pressure on the employer’ and ‘to
compensate employees for the burden of a workweek in excess of the
hours fixed in the Act.’” Calderon v. GEICO Gen. Ins. Co., 809 F.3d
111, 121 (4th Cir. 2015) (quoting Walling v. Helmerich & Payne,
Inc., 323 U.S. 37, 40 (1944)).
The Act does not “impose upon the almost infinite variety of
employment situations a single, rigid form of wage agreement,” but
the agreement must contemplate a “regular rate” and overtime pay in
compliance with the Act. 149 Madison Ave. Corp. v. Asselta, 331
U.S. 199, 203-04 (1947). To that end, the FLSA’s implementing
regulations permit an employer to pay a fixed sum for overtime:
Where an employee works a regular fixed number of hours
in excess of the statutory maximum each workweek, it is,
of course, proper to pay him, in addition to his
compensation for nonovertime hours, a fixed sum in any
such week for his overtime work, determined by
multiplying his overtime rate by the number of overtime
hours regularly worked.
29 C.F.R. § 778.309; see also Smith v. Ass’n of Maryland Pilots, 89
F.3d 829, 1996 WL 349998 (4th Cir. 1996) (unpublished table
decision) (approving fixed-rate pay structure under § 778.309 where
“there was a clear understanding . . . [that] overtime and wages
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DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
[were] included in the 12-hour day”); Sandel v. Fairfield Indus.,
Inc., No. 4:13-CV-1596, 2015 WL 7709583, at *2-*3 (S.D. Tex. June
25, 2015). Indeed, the Wage & Hour Division’s Field Operations
Handbook recognizes that such a scheme may be acceptable if
appropriately administered:
Under appropriate circumstances, and where close scrutiny
reveals there is a clear understanding between the
employer and the employee that a lump-sum payment is
predicated on at least time and one-half the established
rate, and that overtime payment is clearly intended, the
fact the payment is a lump sum will not result in a
violation if it equals or exceeds the proper overtime
payment due. . . . This policy shall be applied very
narrowly and shall not be applied to lump-sum payments
which are nothing more than bonuses for working
undesirable hours.
(Dkt. No. 47-21 at 7).
Here, the defendants have offered evidence that they complied
with § 778.309 by paying consultants a fixed rate that included
straight time and overtime pay. Harris testified that, when he
communicated employment offers to consultants, he would verbally
inform them of the straight and overtime rates, as well as the
total approximate amount of compensation for every 168-hour hitch
(Dkt. No. 52-3 at 45). This practice was corroborated by Fire &
Safety’s internal accountant, who testified that, prior to making
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DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
employment offers, Harris would ask her to calculate hourly rates
on the basis of the hitch rate that he intended to offer the
prospective employee (Dkt. No. 52-5 at 32-33). Indeed, a number of
the defendants’ employees submitted affidavits confirming that,
when hired or placed on a fixed rate, they were told that the rate
included both straight and overtime rates of pay (Dkt. No. 47-3).
b. The Regular Rate Actually Paid to the Consultants
for All Hours Worked Violated the FSLA.
Even assuming that such an agreement existed, it clearly did
not reflect the regular rate of pay actually in effect. “The
regular rate is . . . an ‘actual fact,’ and in testing the validity
of a wage agreement under the Act the courts are required to look
beyond that which the parties have purported to do.” 149 Madison
Ave., 331 U.S. at 204. In other words, “[o]nce the parties have
decided upon the amount of wages and the mode of payment the
determination of the regular rate becomes a matter of mathematical
computation, the result of which is unaffected by any designation
of a contrary ‘regular rate’ in the wage contracts.” 29 C.F.R.
§ 778.108 (quoting Walling v. Youngerman-Reynolds Hardwood Co., 325
U.S. 419 (1945)). An “employee’s ‘regular rate’ is the hourly rate
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DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
that the employer pays the employee for the normal, nonovertime
forty-hour workweek.” Flood v. New Hanover Cty., 125 F.3d 249, 251
(4th Cir. 1997) (citing Walling, 325 U.S. at 424). A brief survey
of relevant cases assists in understanding these requirements.
In 149 Madison Ave. Corp. v. Asselta, the Supreme Court
addressed a circumstance in which the rate identified under a wage
agreement differed from the rate actually in effect. 331 U.S. 199.
The plaintiffs in Asselta contracted for workweeks of either 46 or
54 hours, which were compensated on a weekly basis. The wage
agreement derived the hourly rate from the weekly rate as follows:
The hourly rates for those regularly employed more than
forty (40) hours per week shall be determined by dividing
their weekly earnings by the number of hours employed
plus one-half of the number of hours actually employed in
excess of forty hours.
Id. at 202. The non-overtime hourly rate thus was calculated by
reference to “the hours the employee was scheduled to work and the
weekly wage for such scheduled workweek.” Id. Despite this
agreement, the evidence established that the “regular rate” for
purposes of the FSLA was “obtained by dividing the weekly wage
payable for the working of the scheduled workweek by the number of
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DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
hours in such scheduled workweek; and . . . consequently, the plan
made no adequate provision for overtime.” Id. at 204-05.
The Supreme Court observed that, when determining the hourly
rate for those who worked less than 40 hours a week, “no use
whatsoever was made of the hourly rate derived from formula.”
Instead, they were paid a pro-rata share of the weekly wage. Id. at
205. “Nor was there consistent application of the hourly rate as
determined by the formula to the work of regular employees,” who
were instead paid an amount “considerably in excess of the formula
rate” when they worked less than a full workweek due to excusable
absences. Id. According to the Supreme Court, “[t]he payment of
‘overtime’ compensation for non-overtime work raises strong doubt
as to the integrity of the hourly rate upon the basis of which the
‘overtime’ compensation is calculated,” and is “evidence of an
attempt to pay a pro-rata share of the weekly wage.” Id. Finally,
when employees worked more than the scheduled workweek, they were
paid “one and three-quarters of the formula rate,” which closely
approximated one and one-half the pro-rata wage actually paid. Id.
at 206-07.
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DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
The employer challenged whether any of this evidence
demonstrated that the formula rate was not the regular rate. It
argued
that part-time employees were paid a pro-rata hourly rate
since they had no opportunity to earn overtime
compensation; that the method of paying regular employees
in case of excusable absences was merely a laudable
effort on the part of the employee [sic] to compensate
more fully than the Act requires when an employee failed
to work his scheduled week because of illness or like
causes; and that the time and three-quarters provision
represented an additional premium for employees called
upon to work hours substantially in excess of the non-
overtime workweek.
Id. at 207-08.
The Supreme Court rejected this explanation, in part because
“in every situation . . . the amount paid was either precisely or
substantially that which employees would have been paid had the
contract called for employment on a straight 46 hour week with
payment of time and one-half only for hours worked in excess of
46.” Id. at 208. The Court thus concluded that the “regular rate”
actually in effect failed to compensate employees for overtime
unless they worked in excess of their 46- or 54-hour workweek. Id.
at 209.
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DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
The Second Circuit applied Asselta to a similar pay structure
in Adams v. Department of Juvenile Justice of City of New York, 143
F.3d 61 (2d Cir. 1998). There, the plaintiffs were non-exempt
employees who were paid an annual salary that contemplated 60-hour
workweeks. The employer calculated each employee's hourly wage as
follows:
[F]irst, the annual salary for each Houseparent was
divided by 52.2 to get the weekly salary. Next, the
weekly salary was divided by seventy to get the hourly
rate. The figure seventy was used to show that the first
forty hours of work were compensated at straight time and
the lasts twenty hours of work were compensated at time
and one-half. The twenty hours of overtime were,
therefore, expressible as thirty hours of straight time.
Id. at 64.
The circuit court reasoned that an employer may calculate a
regular rate from a fixed rate, but such calculations are "not
necessarily determinative where there is a sham wage agreement."
Id. (citing Asselta, 331 U.S. at 204). It found the determinative
question was "whether what actually occurred under the wage
contract - as opposed to the mere terms of the contract - reflected
an FSLA-sanctioned arrangement." Id. at 68. Finding that it could
not answer this question on the record before it, the Second
Circuit remanded the case to the district court for a determination
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DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
of the "regular rate" by reference, in part, to the amount docked
when houseparents worked less than 60 hours. Id. at 70.
The “mathematical computation” of a regular rate was also at
issue in Lopez v. Genter’s Detailing, Inc., No. 3:09-CV-0553, 2011
WL 5855269 (N.D. Tex. Nov. 21, 2011), aff’d, 511 F. App’x 374 (5th
Cir. 2013) (unpublished decision). There, the plaintiffs were paid
a fixed hourly rate, which appeared on their paycheck stubs, for
both regular and overtime hours. Id. at *1. The defendant argued
that the hourly rate on the pay stub was a “blended rate” that
included both rates. Id. Although it attempted to prove that its
employees were aware of the “blended rate,” the district court
concluded that such a fact was immaterial to compliance with the
FLSA. The “regular rate” was the rate on the plaintiffs’ paychecks
“because it was the rate the plaintiffs were paid for the first 40
hours they worked each week.” Id. at *3-*4. Inasmuch as the
defendant paid the regular rate “whether the plaintiff worked
significantly more or significantly less than 40 hours per week,”
it violated the FLSA. Id. at *4.
Here, implementation of the parties’ supposed agreement
suffers from the same deficiencies identified in Asselta, and as
19
DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
determined in Adams and Lopez. First, although it is not necessary
that there be a written agreement reflecting the regular rate, see
Smith, 89 F.3d 829, it is significant that the defendants never
recorded purported straight and overtime rates. For instance, to
provide Harris with an hourly rate to utilize during employment
negotiations, his internal accountant calculated the number and
provided it to him informally, such as on a Post-it note (Dkt. No.
52-5 at 34). Neither Harris, nor any relevant supervisor, included
that figure in the offer letters (Dkt. No. 52-4 at 2-24), nor did
they retain the accountant’s calculation in their records (Dkt. No.
52-5 at 34).
During discovery, the accountant admitted that there were some
employees for which Fire & Safety “did not have a record of a
straight-time rate” (Dkt. No. 52-5 at 87). In point of fact,
straight and overtime rates were never included on the consultants’
paychecks (Dkt. No. 52-3 at 50-53). And, when Investigator Mathes
asked the defendants for payroll information, the accountant had to
20
DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
calculate the missing straight-time rates to include them in a
spreadsheet (Dkt. No. 52-5 at 84-87).2
Second, in practice, the alleged straight and overtime rates
were never used to calculate pay when a consultant worked less than
a full hitch. Instead, the defendants always applied a blended rate
to “[a]nything outside the full hitch,” despite the fact that Fire
& Safety’s accountant did not know whether the blended rate had
ever been communicated to employees (Dkt. No. 52-5 at 49-50, 108-
109). Critically, the blended rate was used to pay consultants not
only when they worked less than 84 hours in a week, but also when
they worked less than 40 hours in a week (Dkt. No. 52-8 at 100).
Therefore, the undisputed evidence of record establishes that the
“blended rate” is the regular rate for purposes of the FLSA.
The defendants’ arguments to the contrary are unconvincing.
For instance, they argue that the blended rate resulted in
consultants being paid more than they were entitled to receive
under the agreed straight-time rate. While this fact certainly is
2 Tellingly, the first time the accountant heard the term
“blended rate” was during the Wage & Hour Division investigation
(Dkt. No. 52-5 at 103), and the defendants have not produced any
existing record of straight time rates for consultants who were
paid a hitch rate (Dkt. No. 56 at 16 n.4).
21
DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
relevant to determining whether the blended rate violated the FSLA,
it is not determinative. Adams, 143 F.3d at 70 n.9 (citing Asselta,
331 U.S. at 207-08). By her own admission, the defendants’
accountant did not realize that the consultants were being
“overpaid” by the blended rate until the Wage & Hour Division began
its investigation (Dkt. No. 52-5 at 99). This supports the
conclusion that the blended rate was the regular rate, not that
Fire & Safety “laudabl[y]” paid its employees more than they were
entitled to receive. See Asselta, 331 U.S. at 207-09.
In addition, the pay structure utilized before and after the
hitch and blended rates bears little relevance to the issues in
this case. Several Fire & Safety employees submitted affidavits
indicating that their pay remained substantially the same when the
defendants transitioned to using the hitch rate and blended rate in
2014 (Dkt. No. 47-3; 52-5 at 107). As well, the evidence is that,
since January 2017 when the defendants reverted to paying on the
basis of straight and overtime rates, the consultants’ compensation
has remained substantially the same (Dkt. No. 47-3). But the FSLA
is not concerned with whether consultants’ total compensation was
fair in the industry or approximated the pay under a lawful scheme.
22
DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
The facts here simply do not justify the defendants’ improper use
of a single regular rate for all hours worked. “Any other
conclusion . . . would exalt ingenuity over reality and would open
the door to insidious disregard of the rights protected by the
Act.” Helmerich & Payne, 323 U.S. at 42.
The Court concludes that the defendants failed to pay their
consultants overtime compensation as required by the Act and GRANTS
the DOL’s motion for summary judgment on this issue.
2. Whether the Defendants Failed to Keep Proper Records.
The DOL contends that it is entitled to summary judgment
regarding the defendants’ failure to maintain proper records (Dkt.
No. 52 at 19). The Act requires employers to “make, keep, and
preserve” records of the persons they employ, as well as “the
wages, hours, and other conditions and practices of employment,”
for a period of time set forth in the regulations. 29 U.S.C.
§ 211(c). The regulations specify that employers “shall maintain
and preserve payroll or other records containing . . . [h]ours
worked each workday.” 29 C.F.R. § 516.2(a)(7). The defendants do
not dispute that they failed to keep a record of the hours worked
23
DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
each workday by the consultants (Dkt. Nos. 52-9 at 14; 54).3
Therefore, the Court GRANTS the DOL’s motion for summary judgment
regarding the defendants’ failure to maintain appropriate records
under the Act (Dkt. No. 52 at 19).
3. Whether the Defendants Are Liable for the Quantity of
Back Wages Due As Calculated by the DOL.
The DOL contends that it is entitled to summary judgment
regarding the amount of back wages due (Dkt. No. 52 at 16-17).
Title 29 U.S.C. § 216(b) provides that “[a]ny employer who violates
[§ 207] shall be liable to the employee or employees affected in
the amount of . . . their unpaid overtime compensation . . . and in
an additional equal amount as liquidated damages.” When employees
have already received straight-time pay for all hours worked,
“unpaid overtime compensation” due under the Act is 50% of the
regular rate for the overtime hours worked. Desmond, 630 F.3d at
354-57.
3 Contrary to the defendants’ assertion, that their records
accurately contain “the hours worked and pay received by [the]
employees” does not necessarily mean that the hours were recorded
in compliance with the Act and its implementing regulations (Dkt.
No. 54 at 9).
24
DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
Here, the DOL calculated that 70 of the defendants’ employees
who were not paid overtime compensation are owed a total of
$817,902.11 in back wages (Dkt. No. 52-6 at 5). In support of this
calculation, the DOL submitted the declaration of Catherine Glencoe
(“Glencoe”), the Assistant District Director at the Wage & Hour
Division, who worked with Mathes during the investigation of this
case (Dkt. No. 52-6). According to Glencoe, the DOL calculated back
wages by multiplying overtime hours by 50% of the regular rate -
the blended rate - and she provided detailed spreadsheets of the
back wages calculations. Id. at 4, 11.
In response, the defendants assert that there are “numerous
problems” with the calculations, such as incorrect dates and hours
(Dkt. No. 54 at 8-9). They do not point to a single specific error
in the DOL’s calculations, nor have they provided their own damages
calculations.4 Their conclusory allegations are insufficient to
establish a dispute of material fact for trial, given the lack of
4 The defendants contend only that the DOL improperly
calculated back wages for one specific employee, Jesse Gascon, who
“was always paid using a traditional hourly rate and time and one-
half for overtime” (Dkt. No. 54 at 8). As Glencoe outlined in her
declaration, however, the DOL has conceded this error and
accordingly removed Jesse Gascon from its back wage calculations
(Dkt. No. 52-6 at 5).
25
DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
any specific evidence upon which a jury could reach a contrary
calculation of back wages. See White v. Rockingham Radiologists,
Ltd., 820 F.2d 98, 101 (4th Cir. 1987). Therefore, the Court GRANTS
the DOL’s motion for summary judgment regarding the defendants’
liability for back wages due in the amount of $817,902.11.
4. Whether the Defendants Are Liable for Liquidated Damages.
The DOL next contends that it is entitled to summary judgment
regarding the defendants’ liability for liquidated damages (Dkt.
No. 52 at 17-19). Liquidated damages are “mandatory” unless “the
employer shows to the satisfaction of the court that the act or
omission giving rise to such action was in good faith and that he
had reasonable grounds for believing that his act or omission was
not a violation of the [FLSA].” Perez v. Mountaire Farms, Inc., 650
F.3d 350, 375 (4th Cir. 2011) (alteration in original) (quoting 29
U.S.C. § 260). The burden “is a difficult one to meet, however, and
‘[d]ouble damages are the norm, single damages the exception.’”
Perez v. Mountaire Farms, Inc., 610 F. Supp. 2d 499, 527 (D. Md.
2009) (quoting Brock v. Wilamowsky, 833 F.2d 11, 19 (2d Cir. 1987),
aff’d in part and vacated in part on other grounds, 650 F.3d 350
26
DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
(4th Cir. 2011). A decision on liquidated damages is reviewed for
abuse of discretion. Mountaire Farms, Inc., 650 F.3d at 375.
Critically, “an employer ‘may not simply remain blissfully
ignorant of FLSA requirements” by taking “an ‘ostrichlike’ approach
to the Act.” Roy v. Cty. of Lexington, S.C., 141 F.3d 533, 548-49
(4th Cir. 1998). “The good faith requirement mandates that the
employer have an honest intention to ascertain and follow the
dictates of the Act,” including “some investigation of potential
liability.” Quirk v. Baltimore Cty., Md., 895 F. Supp. 773, 788 (D.
Md. 1995) (internal quotation omitted). Factors for the Court to
consider include whether the defendants’ conduct was willful,
whether they consulted attorneys or the Wage & Hour Division, and
whether they sometimes compensated the consultants more generously
than the Act requires. Roy, 141 F.3d at 548-49.
Here, the defendants have not met their burden to establish
that liquidated damages are inappropriate in this case. Mountaire
Farms, Inc., 650 F.3d at 375. Although they contend that there is
no evidence they willfully violated the FSLA, and assert the
consultants’ pay in fact did not change substantially when the
defendants transitioned to hitch rates (Dkt. Nos. 47-3; 54 at 18),
27
DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
the deposition testimony in this case establishes that they took
the “ostrichlike” approach forbidden under the Act. Roy, 141 F.3d
at 548-49.
The defendants admit that they did not consult with an
accountant or attorney regarding FLSA applicability between January
2014 and January 2016 (Dkt. No. 52-1 at 4). When Fire & Safety
implemented the hitch rate, Harris testified that he relied on his
human resources and accounting employees to ensure compliance with
overtime regulations (Dkt. No. 52-3 at 137). He did not recall
whether he actually inquired of his employees regarding FSLA
compliance, and frankly admitted that he had not taken other
precautionary measures:
Q. Did you ask your [outside] accountant?5
A. I don’t remember if they did or not. I didn’t, but
they may have.
Q. Did you ask [human resources or accounting] if they
asked the [outside] accountant?
A. I don’t recall.
5 The defendants utilized local accounting firm Secret &
Shields to assist with payroll and records (Dkt. No. 52-5 at 26-
28). “They process the payroll, they calculated the withholdings,
they cut the checks.” Id. at 28.
28
DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
Q. Did you attend any training sessions or read any
books about how this change might affect –-
A. No.
Q. –- the overtime? Did you consult with an attorney
about the change this might have?
A. No.
Q. So, essentially, you made this change and didn’t
really think twice about how this could affect your
obligations on the FSLA?
A. No, because I had no employees complain, and no one
ever complained about their pay being late or
wrong, and everybody worked –- they were paid what
they agreed to and what I agreed to with them.
Id. at 138.
Fire & Safety’s internal accountant, whose duties included
payroll, testified that she had “limited knowledge” of the FSLA
(Dkt. No. 52-5 at 14, 25). She did not know whether anyone at Fire
& Safety “consulted with an accountant, attorney, [or] outside
professional” regarding FSLA compliance, but acknowledged that she
never consulted with the company’s outside accountant regarding
overtime. Id. at 101. In fact, Fire & Safety’s outside accountant
was not involved with calculating the appropriate pay for
consultants. The consultants’ pay “was calculated in the house” and
transmitted to the outside accountant as a “gross amount due” (Dkt.
29
DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
No. 52-3 at 112). Nor is there any evidence that any human
resources employee of the defendants consulted with an attorney or
accountant regarding the Act.
Although the defendants did not engage in willful or malicious
conduct, the undisputed evidence makes clear that they made no
attempt to ascertain or investigate their obligations under the
Act. Quirk, 895 F. Supp. at 788. This is exactly the type of
conduct that liquidated damages under the FSLA are meant to
address. See Roy, 141 F.3d at 548-49. Therefore, the Court GRANTS
the DOL’s motion for summary judgment on its claim for liquidated
damages.
5. Whether the DOL Is Entitled to Injunctive Relief.
When a defendant violates the Act by failing to pay overtime
compensation, district courts may enjoin future violations of the
FSLA “for cause shown.” 29 U.S.C. § 217. “The Secretary, as the
party asserting jurisdiction, bears that burden to satisfy the
Court that an injunction is necessary.” Chao v. Virginia Dep’t of
Transp., 157 F. Supp. 2d 681, 689-90 (E.D. Va. 2001), rev’d on
other grounds, 291 F.3d 276 (4th Cir. 2002) (citing Metzler v. IBP,
Inc., 127 F.3d 959, 963 (10th Cir. 1997)).
30
DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
As the Ninth Circuit has explained, prospective injunctions
effectuate the national policy of the FSLA by placing the cost of
noncompliance on the employer. Brock v. Big Bear Market No. 3, 825
F.2d 1381, 1383 (9th Cir. 1987). “In deciding whether to grant
injunctive relief, a district court must weigh the finding of
violations against factors that indicate a reasonable likelihood
that the violations will not recur.” Id. Such factors include
present compliance, bona fide intent to comply, good faith coupled
with extraordinary efforts to prevent recurrence, the absence of
repetitive violations, and the absence of bad faith. Id.; see also
Chao, 157 F. Supp. 2d at 689-90 (collecting cases).
Here, the DOL has not established cause for the issuance of a
prospective injunction. It alleges only that “the defendants owe a
substantial amount of back wages to their employees for overtime
violations, and they have not presented any evidence that they have
come into compliance” (Dkt. No. 52 at 19-20). The burden to
establish the propriety of an injunction rests on the DOL, which
has failed to address many of the relevant factors. Chao, 157 F.
31
DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
Supp. 2d at 689-90.6 Therefore, the Court DENIES the DOL’s motion
for summary judgment seeking injunctive relief.
C. Motion for Attorney’s Fees and Costs
When they moved for summary judgment, the defendants moved
separately for an award of attorney’s fees and costs (Dkt. No. 49).
Under 28 U.S.C. § 2412(a)(1), the Court may award attorney’s fees
and expenses “to the prevailing party in any civil action brought
by or against the United States or any agency or any official of
the United States acting in his or her official capacity in any
court having jurisdiction of such action.” Because the defendants
have not prevailed in this case, the Court DENIES their motion for
attorney’s fees and costs (Dkt. No. 49).
IV. CONCLUSION
For the reasons discussed, the Court:
1) OVERRULES the Defendants’ Objection to Plaintiff’s
Revised Schedule A (Dkt. No. 66);
6 In fact, the defendants have submitted evidence that they
have come into compliance with the use of straight and overtime
rates (Dkt. No. 47-3).
32
DEP’T OF LABOR V. FIRE & SAFETY 1:17CV25
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART THE UNITED STATES DEPARTMENT OF LABOR’S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 51], DENYING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [DKT. NO. 47], AND
DENYING DEFENDANTS’ MOTION FOR ATTORNEY FEES [DKT. NO. 49]
2) GRANTS in part and DENIES in part the Plaintiff’s Motion
for Summary Judgment (Dkt. No. 51);
3) DENIES the Defendants’ Motion for Summary Judgment (dkt.
No. 47);
4) DENIES the Defendants’ Motion for Attorney Fees and Costs
(Dkt. No. 49);
5) DENIES AS MOOT the defendants’ motions in limine (Dkt.
Nos. 90; 92);
6) DENIES AS MOOT the defendants’ Motion to Dismiss and
Alternative Motion to Compel (Dkt. No. 99);
7) DISMISSES this case WITH PREJUDICE.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this
Memorandum Opinion and Order to counsel of record, to enter a
separate judgment order, and to strike this case from the Court’s
active docket.
DATED: May 3, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
33