Opposition Brief — Tony & Susan Alamo Foundation v. Martin
Supreme Court brief1992
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No. 91-1577 | oFrice oF THE cuenx
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Iu the Supreme Court of the United States
OCTOBER TERM, 1991
TONY AND SUSAN ALAMO FOUNDATION, ET AL.,
PETITIONERS
v.
LYNN MARTIN, SECRETARY OF LABOR
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
KENNETH W. STARR
Solicitor General
Department of Justice
MARSHALL J. BREGER Washington, D.C. 20530
Solicitor of Labor (202) 514-2217
ALLEN H. FELDMAN
Associate Solicitor
STEVEN J. MANDEL
Deputy Associate Solicitor
ELIZABETH HOPKINS
Attorney
Department of Labor
Washington, D.C. 20210
QUESTION PRESENTED
Whether the court of appeals erred in ordering the
district court to award back wages due to non-
testifying employees under the Fair Labor Stand-
ards Act, 29 U.S.C. 201 et seqg., based on the testi-
mony of representative employees.
TABLE OF CONTENTS
Page
Opinions below ....... eaNISCHMNNCADNbysuliceaipiilalshinnatblardgnboipsiienaenanseanans 1
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TABLE OF AUTHORITIES
Cases:
Anderson v. Mt. Clemens Pottery Co., 328 U.S.
Se Ea aE entrees 4,7,9,13
Beliz v. W.H. McLeod & Sons Packing Co., 765
F260 1817 (Sth Cir. 1986) ..................................... 13
Brennan V. General Motors Acceptance Corp., 482
F.2d 825 (5th Cir. 1978) 0... 9,11
Brock v. Seto, 790 F.2d 1446 (9th Cir. 1986) ........ 13
Brock v. Tony & Susan Alamo Found., 842 F.2d
RORS (Sth Cir. 1968) .............................................. 2, 8, 5
Castillo v. Givens, 704 F.2d 181 (5th Cir.), cert.
denied, 464 U.S. 850 (1983) 9,11
Dole Vv. Snell, 875 F.2d 802 (10th Cir. 1989) pete. 11
Dole v. Tony & Susan Alamo Found., 915 F.2d 349
ERR I aa C sre 5
Donovan v. Bel-Loc Diner, Inc., 780 F.2d 1113
NN I isch coment uinisacwsosiroviunctinasictcves sac. 8-9
Donovan V. Burger King Corp., 672 F.2d 221 (1st
RE Rae a ee 9,11
Donovan Vv. Grantham, 690 F.2d 453 (5th Cir
1 ARATE ee 12
Donovan Vv. New Floridian Hotel, Inc., 676 F.2d
468 (11th Cir. 1982) . ae NORM MS
Donovan v. Simmons Petroleum Corp., 125 F.2d
he Sb | ERA ea 9
Donovan V. Tony & Susan Alamo Found. :
567 F. Supp. 556 (W.D. Ark. 1982)... 2,3
122 F.2d 397 (8th Cir. 1988) .......................... 3, 4, 10
(111)
IV
Cases—Continued: Page
McLaughlin v. DialAmerica Marketing, Inc., 716
F. Supp. 812 (D.N.J. 1989), aff’d, 935 F.2d 1281
(3d Cir.), cert. denied, 112 S. Ct. 583 (1991)... 11
McLaughlin v. Ho Fat Seto, 850 F.2d 586 (9th
Cir. 1988), cert. denied, 488 U.S. 1040 (1989) ..8, 9, 11
Mt. Clemens Pottery Co. v. Anderson, 149 F.2d
ee I I I choca caine ecratamenteaaee 9
Secretary of Labor v. DeSisto, 929 F.2d 789 (ist
SO I ct eee 11
Tony & Susan Alamo Found. v. Secretary of Labor,
re ee I seta hsvs beh arenes ceccaneres Nine 2,4
Statute and regulations:
Fair Labor Standards Act, 29 U.S.C. 201 et seq.:
ELC ik Cee 1s) Renner eee mmneT 3, 4, 5
a Oe eA I cc ehetihacnseinnecacaseanccdinsaxentneinioanteiocies 3,7
Be ie ea I dtr censicoveesienniectiansnisesansbueniaantiehin 3,7
ei Mm Bie 8 om . 6S) eee 7
BOM Bt8 Som oT | | eee arneE 8
Be Lk 8 oe; enn eseonaas 2,8
29 C.F.R.:
Gn the Supreme Court of the United States
OCTOBER TERM, 1991
No. 91-1577
TONY AND SUSAN ALAMO FOUNDATION, ET AL.,
PETITIONERS
Vv.
LYNN MARTIN, SECRETARY OF LABOR
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App.
5-10) is reported at 952 F.2d 1050. The district
court’s January 9, 1991 order (Pet. App. 1) and
April 2, 1991 order and amended judgment (Pet.
App. 2-3) are unreported.
JURISDICTION
The judgment of the court of appeals was filed on
January 3, 1992. The petition for a writ of certiorari
was filed on April 1, 1992. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
(1)
2
STATEMENT
1. Petitioner Tony and Susan Alamo Foundation
is a nonprofit religious organization incorporated un-
der the laws of California. Tony d& Susan Alamo
Found. vy. Secretary of Labor, 471 U.S. 290, 292
(1985).' Petitioner Tony Alamo, who is President of
the Foundation, actively supervises its operations.*
During the time period relevant to this case, the
Foundation operated numerous commercial ventures,
including service stations, retail clothing and grocery
outlets, hog farms, roofing and electrical construction
companies, a motel, and a candy manufacturing and
distribution company. 471 U.S. at 292. These busi-
nesses were staffed primarily by the Foundation’s ap-
proximately 300 ‘associates,’ who received no cash
salaries but were provided with food, shelter and
other necessities by the Foundation. The Foundation
failed to maintain any “records of the hours worked
by associates in its commercial businesses.” Donovan
v. Tony d& Susan Alamo Found., 567 F. Supp. 556,
562 (W.D. Ark. 1982).
2. The Secretary of Labor brought this action un-
der Section 17 of the FLSA, 29 U.S.C. 217, to enjoin
petitioners from violating the Act’s minimum wage,
overtime and record-keeping requirements and to col-
lect back wages owed to the Foundation’s employees.
| 'The Eighth Circuit’s most recent decision, which is re-
produced in the appendix to petitioners’ brief (Pet. App.
5-10), contains only an abbreviated discussion of the facts.
Therefore, we refer to earlier decisions in this case, including
unpublished district court decisions attached as an appendix
to this brief and a decision of this Court.
2 Susan Alamo and Larry LaRouche are no longer parties
to this litigation. Brock v. Tony & Susan Alamo Found.,
842 F.2d 1018, 1019 n.1 (8th Cir. 1988).
A
3
Pet. App. 5-6. On December 13, 1982, following a
bench trial, the district court issued a memorandum
and order holding that petitioners had violated the
Act’s minimum wage, overtime, and recordkeeping
provisions. 567 F. Supp. 556. The court ordered in-
junctive relief and awarded back wages to most of
the testifying “outside workers” who were not asso-
ciates of the Foundation,* but did not award back
wages to any of the associates. Jd. at 576. Instead,
the court ordered the Secretary to mail a notice of
the decision to all associates advising them to submit
an affidavit if they wished to claim back wages. bid.
Based on these affidavits, the Secretary was then to
submit to the court a proposed finding of back wages
due each associate, less the reasonable cost, as deter-
mined by the court, of each associate’s board, lodging,
and other benefits. Jd. at 576-577.‘
3. On appeal, the Eighth Circuit affirmed the dis-
trict court as to liability, but reversed and remanded
*The court of appeals affirmed the district court’s deter-
mination that the associates who worked in the Foundation’s
commercial enterprises and the 18 “outside workers” were
“employees” as defined by the FLSA. See Donovan v. Tony
and Susan Alamo Found., 722 F.2d 397, 404-405 (8th Cir.
1983) ; Brock v. Tony and Susan Alamo Found., 842 F.2d at
1019.
‘Sections 6 and 7 of the FLSA, 29 U.S.C. 206, 207, re-
quire that an employer pay employees covered by the Act
a minimum hourly wage and overtime compensation for hours
worked in excess of 40 per week. Under Section 3( m) of
the Act, 29 U.S.C. 203(m), an employer may count as wages
paid the “reasonable cost” of providing an employee with
board, lodging, or other facilities, if such items are “custom-
arily furnished” by the employer to his employees. See 29
C.F.R. 531.28. For each year at issue, the court calculated the
amount of Section 3(m) benefits to be set off against back
wages due each associate. 567 F. Supp. at 566-570.
4
as to the award of back wages. 722 F.2d 397 (1983).
Citing this Court’s decision in Anderson v. Mt. Clem-
ens Pottery Co., 328 U.S. 680 (1946), the court of
appeals held that the district court had improperly
placed on the employees the burden of initiating pro-
ceedings to obtain payment of back wages. 722 F.2d
at 404. The court remanded for a “determination of
the amounts of wages owing, such determination to
be based either upon the present record or as supple-
mented by such additional evidence as the District
Court may afford the parties an opportunity to offer.”
722 F.2d at 405.°
4. The district court entered a judgment on re-
mand on November 26, 1986, App., infra, 20a-27a. It
ordered the payment of back wages to most of the
testifying associates, less Section 3(m) deductions in
the amounts the court had previously determined.’
The court concluded that these associates were entitled
to compensation for at least 40 hours of work per
week from January 1, 1976, until the injunction was
entered in the case. App., infra, 23a-3la. The district
court then dismissed without prejudice the Secretary’s
claims on behalf of the approximately 300 associates
who did not testify. Jd. at 22a.
*On the Foundation’s petition challenging the application
of the Act to a religious institution on statutory and con-
stitutional grounds, this Court granted certiorari and affirmed
the holdings of the lower courts on these issues. 471 U.S.
290 (1985).
®* The 1986 judgment incorporated a memorandum and order
entered by the district court on September 11, 1984, App.,
infra, 12a-19a. The court awarded back wages to seven asso-
ciates deposed by the Secretary, and to three associates who
offered live testimony at trial. Jd. at 23a. It failed to rule
on back wages for two other associates who had been deposed,
and for one remaining “outside worker.”
2
5. Following a second appeal, the Eighth Circuit
affirmed the district court’s award of back wages, but
again remanded for the district court to “estimate
and fashion a reasonable remedy that restores as fully
as possible all the employees covered by the FLSA
who were improperly denied compensation, regardless
of the lack of records.” Brock v. Tony & Susan Alamo
Found., 842 F.2d 1018, 1019 (8th Cir. 1988).7
6. During further proceedings directed at estab-
lishing the amounts owed the non-testifying associ-
ates, the district court “ordered the Secretary to sub-
mit a proposed judgment ‘reflecting an award for
each [employee] identified by the [Foundation] and
acknowledged as having worked in the [ Foundation’s ]
commercial businesses’ based on the backpay awarded
earlier to the testifying employees.” Pet. App. 6-7,
quoting App., infra, 3a. The Foundation objected to
the Secretary’s proposed judgment, contending that
the amount of back wages should be based on the
Foundation’s own recently compiled estimates of the
number of hours the employees had worked, and that
the amounts proposed by the Secretary had not been
offset by the Section 3(m) non-salary benefits. Pet.
App. 7. The district court then ordered the Secretary
to revise her proposed judgment in light of these
objections. Pet. App. 7; App., infra, la-2a. Because
*The court of appeals also ordered the lower court to
make a specific finding as to the amount of wages due to
one remaining “outside worker” and to two associates whose
depositions the court had overlooked. 842 F.2d at 1020.
On April 25, 1989, the district court entered a partial judg-
ment awarding back wages and prejudgment interest to
the “outside worker” and to the two associates based on
the determination that the associates had worked 60 hours
per week during the years in question. App., infra, 5a-lla.
The Eighth Circuit affirmed that award. 915 F.2d 349 (1990).
6
the court found that, according to the Foundation’s
calculations, ‘‘no additional amounts [were] due,” the
court dismissed the claims with prejudice. Pet. App. 1.
7. Upon the Secretary’s appeal, the Eighth Circuit
again reversed, agreeing with the Secretary that “the
district court failed to carry out [the] court’s man-
date by ordering the Secretary to base its proposed
judgment on the Foundation’s unsubstantiated ap-
proximations of the non-testifying employees’ hours,
rather than the Secretary’s ‘pattern or practice’ evi-
dence based on the hours the testifying employees
worked.” Pet. App. 7-8. The court noted that,
throughout the lengthy course of the litigation, the
Foundation had insisted that it had no record of the
hours the associates worked. Nevertheless, in “‘a last-
ditch attempt to subvert [the] court’s earlier opinion,”
it had “belated[ly]”” come forward with names of
employees and a list of the hours that they had pur-
portedly worked. /d. at 8. The court noted that its
previous opinion reflected the district court’s findings
“that the Foundation maintained no employee work
records and the Foundation’s ‘reconstructed’ records
were inaccurate.” /bid. It concluded that the Foun-
dation was foreclosed ‘from attacking the Secretary’s
‘pattern or practice’ evidence on remand with self-
serving, unsubstantiated approximations of the hours
its employees worked,” ibid., and that the district
court erred in relying on the Foundation’s submission.
The court rejected the Foundation’s criticism of
the Secretary’s proposed method of calculating back
wages. The court noted that, when an employer fails
to keep records it is required to maintain under the
FLSA, this Court has declared that the amount of
damages awarded should be ‘“‘based on the ‘just and
7
reasonable inference’ from the evidence presented.”
Mt. Clemens Pottery, 328 U.S. at 687. The court
stated that “[w]e contemplated the district court
awarding backpay to the nontestifying employees
based on the fairly representative testimony of the
testifying employees.” Pet. App. 9. The court con-
cluded that “the district court committed error in
rejecting the Secretary’s proposed judgment” based
on representative employee testimony. /bid. Finally,
the court ruled that the Secretary’s proposed judg-
ment properly credited the Foundation for the meals
and lodging that it had provided its employees. /d.
at 9-10.
ARGUMENT
The court of appeals’ decision involves the applica-
tion of well-established principles to the specific facts
of this case, and it does not conflict with any decision
of this Court or of any other court of appeals. Accord-
ingly, further review is unwarranted.
1. The FLSA requires that covered employers pay
their employees a statutorily prescribed minimum
wage for all hours worked and a premium for hours
worked in excess of 40 hours per week. 29 U.S.C. 206,
207. Additionally, the statute requires covered em-
ployers to maintain and provide to the Wage-Hour
Administrator records concerning all employees and
their wages, hours, and other conditions and practices
of employment. 29 U.S.C. 211(c); see also 29 C.F.R.
Pt. 516.
As this Court has recognized, if an employer keeps
inadequate or inaccurate records, it is often impossi-
ble for an employee to prove the exact amount of
back wages to which he is entitled. Mt. Clemens Pot-
tery Co., 328 U.S. at 687. Because the statutory duty
of record-keeping lies with the employer, however, it
8
would defeat the Act’s remedial purposes to require
each worker to “prove the precise extent of uncom-
pensated work” in order to receive wages due under
the Act. Rather, the employee (or the Secretary of
Labor on the employee’s behalf“) “has carried out
his burden if he proves that [the employee] has in
fact performed work for which he was improperly
compensated” and produces “sufficient evidence to
show the amount and extent of that work as a matter
of just and reasonable inference.” /bid. Once the
employee or the Secretary has established the prima
facie case in such a manner, “[t]he burden then shifts
to the employer to come forward with evidence of
the precise amount of work performed or with evi-
dence to negative the reasonableness of the inference
to be drawn from the employee’s evidence.” Jd. at
687-688.
In implementing Mt. Clemens Pottery, courts have
not required all allegedly undercompensated employ-
ees to testify ‘n order to establish entitlement to back
wages. Rather, in the absence of adequate record-
keeping, courts “have frequently granted back wages
under the FLSA to non-testifying employees based
upon the representative testimony of a small percent-
age of the employees. * * * The requirement is only
that the testimony be fairly representational.” Dono-
van vy. Bel-Loc Diner, Inc., 780 F.2d 1113, 1116 (4th
Cir. 1985) (citation omitted); see also Donovan v.
* Although Mt. Clemens involved a suit brought directly
by employees under Section 16(b) of the FLSA, petitioners
do not deny that the Mt. Clemens standard applies to an
action by the Secretary of Labor under Section 17 of the
Act. Lower federal courts have uniformly applied Mt. Clemens
in suits by the Secretary under the FLSA. See, e.g., Mc-
Laughlin Vv. Ho Fat Seto, 850 F.2d 586, 589 (9th Cir. 1988),
cert. denied, 488 U.S. 1040 (1989); Donovan v. Bel-Loc
Diner, Inc., 780 F.2d 1118, 1116 (4th Cir. 1985).
—
9
New Floridian Hotel, Inc., 676 F.2d 468, 472 (11th
Cir. 1982) (“[I]t is clear that each employee need
not testify in order to make out a prima facie case of
the number of hours worked as a matter of ‘just and
reasonable inference.’”’); accord McLaughlin v. Ho
Fat Seto, 850 F.2d 586, 589 (9th Cir. 1988), cert.
denied, 488 U.S. 1040 (1989): Donovan v. Simmons
Petroleum Corp., 725 F.2d 83, 86 (10th Cir. 1983);
Donovan vy. Burger King Corp., 672 F.2d 221, 224, 225
(Ist Cir. 1982); Brennan vy. General Motors Accept-
ance Corp. (GMAC), 482 F.2d 825, 829 (5th Cir.
1973). The use of representative testimony is fully
in keeping with Mt. Clemens Pottery: As the Court
pointed out, barring recovery in the absence of precise
proof of the exact amount of under-compensation
would “place a premium on an employer’s failure to
keep proper records” and “penalize the employee” by
allowing the noncompliant employer “to keep the
benefits of the employee’s labors.” 328 U.S. at 687.
Indeed, in Mt. Clemens Pottery itself, only eight out
of 300 affected employees testified. See Mt. Clemens
Pottery Co. v. Anderson, 149 F.2d 461, 462 (6th Cir.
1945).
Once a pattern or practice of unde ‘payment is
established by representative testimony, the burden
shifts to the employer to undermine the conclusions
drawn from the representative testimony. For ex-
ample, the employer may rebut the existence or extent
of the violations, Mt. Clemens Pottery, 328 U.S. at
687-688; Castillo v. Givens, 704 F.2d 181, 194 (5th
Cir.), cert. denied, 464 U.S. 850 (1983). offer proof
that individual employees are not included in the pat-
tern or practice, GMAC, 482 F.2d at 829. or demon-
strate that the testifying employees are not repre
sentative of the larger group. See, ¢.q., Gov’t Br. in
Opp. at 11-13, DialAmerica Marketing, Inc. v. Martin.
cert. denied, 112 S. Ct. 583 (1991).
10
2. Petitioners imply that an award of backpay to
non-testifying associates would be improper because
no proof was presented as to “the number of asso-
ciates who worked in [the Foundation’s] commercial
business and the number of hours worked.” Pet. 16.
However, there is no longer a dispute as to the num-
ber of unpaid associates who worked in the Founda-
tion’s commercial enterprises in the years in question.
Indeed, on August 22, 1990, the district court ordered
the Secretary to submit a proposed judgment reflect-
ing an award for “each associate identified by [peti-
tioners| and acknowledged as having worked in the
commercial businesses of the [petitioners].” App.,
infra, 3a. In other words, the Foundation itself iden-
tified these associates as having worked in its com-
mercial enterprises. The Secretary submitted a pro-
posed judgment requesting an award of back wages
for only these associates.
Furthermore, there is no question that the Secre-
tary established that none of the associates received
cash compensation for the work performed. There-
fore, the only issue before this Court is whether the
court of appeals properly determined, as a matter of
‘just and reasonable inference,” the number of hours
for which the non-testifying employees were entitled
to compensation.
Petitioners contend (Pet. 16-17) that the Secretary
presented no evidence as to the number of hours that
the non-testifying associates worked, but instead
asked the district court to award back wages to these
associates “based on assumptions only.” Pet. 20
This contention is in error. The court of appeals had
previously ordered the district court to calculate a
back wages award based on evidence in the record,
“supplemented by * * * additional evidence” if nec-
essary. 722 F.2d at 405. The district court subse-
————__ aaa
ii
11
quently concluded, App., infra, 23a-31a, that the un-
rebutted testimony and depositions of 12 associates
established that those associates worked 40-84 hours
a week in the Foundation’s commercial enterprises
during the years in question. Based on the “Just and
reasonable” assumption that the testimony was repre-
sentative of the work patterns of the non-testifying
associates, the Secretary ultimately requested that
awards to the non-testifying associates be based on a
work week of 40 hours, the minimum number of
hours found to have been worked by any testifying
associate.
Petitioners do not challenge the well-established
principle that Mt. Clemens Pottery allows district
courts to award back wages under the FLSA to non-
testifying employees based upon the fairly representa-
tive testimony of a smaller group of employees.® Nor
do petitioners succeed in undermining the Secretary’s
premise, which the court of appeals found reasonable,
* See Ho Fat Seto, 850 F.2d at 589: see also Dole v. Snell,
875 F.2d 802, 803 (10th Cir. 1389) (testimony of one rep-
resentative employee established violations concerning 32
employees) ; Castillo, 704 F.2d at 195 {testimony of 13
representative employees established uncompensated hours
for 39 employees) ; Burger King Corp., 672 F.2d at 224-225
(employees from six locations established a pattern of viola-
tion for 44 locations in two states); New Floridian Hotel.
676 F.2d at 472 (testimony of 23 employees, together with
other supporting evidence, established prima facie case for
back pay award to 151 employees); GMAC, 482 F.2d at
829 (testimony of 16 out of 26 employees) ; McLaughlin
Vv. DialAmerica Marketing, Inc., 716 F. Supp. 812, 827 (D.N.J.
1989) (testimony of 43 out of 393 employees) aff’d, 935
F.2d 1281 (3d Cir.), cert. denied, 112 S. Ct. 583 (1991) ;
but see Secretary of Labor v. DeSisto, 929 F.2d 789, 793 (ist
Cir. 1991) (testimony of one employee found insufficiently
representative to support award to 244 employees).
12
see Pet. App. 9, that the 12 testifying associates were
“fairly representative” of the larger group of asso-
ciates that worked in the Foundation’s commercial
enterprises. Under Mt. Clemens, however, it is up to
petitioners to rebut the reasonableness of the infer-
ence that the hours and patterns of work of the testi-
fying associates were typical of the group as a whole.
This petitioners have failed to do. Petitioners suggest
that, instead of relying on representative testimony,
the district court should base its backpay calculation
on information provided by the Foundation itself.
See Pet. 20-21. However, the court of appeals con-
cluded, based on the district court’s own “findings
that the Foundation maintained no employee work
records and the Foundation’s ‘reconstructed’ records
were inaccurate,” that petitioners’ submission was
far less reliable than the Secretary’s “pattern or
practice” evidence, and could not be used to under-
mine the Secretary’s proposed award. Pet. App. 8;
see also Donovan v. Grantham, 690 F.2d 4538, 458
(5th Cir. 1982) (in order to rebut Secretary’s calcu-
lations of wages owed, employer’s “evidence must be
as precise as that offered by the Secretary”’’).’°
In any event, petitioners cannot complain that the
use of representative testimony results in only an
approximate calculation of the backpay actually due,
since any imprecision is directly attributable to peti-
tioner’s failure to maintain appropriate records.
'» Although petitioners do not challenge the awards pre-
viously made by the court to the testifying associates, they
suggest that the testimony of three of these associates (Pet.
18-20) indicates that these associates did not work any
compensable hours in the Foundation’s commercial enter-
prises. The district court found otherwise, however, con-
cluding that each of these associates worked 40 hours a
week during the years in question. App., infra, 30a-31la.
13
“The employer cannot be heard to complain that the
damages lack the exactness and precision of measure-
ment that would be possible had he kept records in
accordance with the requirements * * * of the Act.’’
Mt. Clemens Pottery, 328 U.S. at 688. See Brock vy.
Seto, 790 -F.2d 1446, 1448 (9th Cir. 1986) (“Mt.
Clemens Pottery leaves no doubt that an award of
back wages will not be barred for imprecision where
it arises from the employer’s failure to keep records
as required by the FLSA.”); Beliz v. W.H. McLeod
d& Sons Packing Co., 765 F.2d 1317, 1330-1331 (5th
Cir. 1985) (“Because precise evidence of the hours
worked by each individual is not available due to the
failure of [the employer] to keep adequate records,
the workers may satisfy their burden with admit-
tedly inexact or approximate evidence.’’).
CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
MARSHALL J. BREGER
Solicitor of Labor
ALLEN H. FELDMAN
Associate Soiicitor
STEVEN J. MANDEL
Deputy Associate Solicitor
ELIZABETH HOPKINS
Attorney
Department of Labor
JUNE 1992
APPENDIX
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Civil No. 77-2183
ELIZABETH DOLE, Secretary of Labor,
U.S. Department of Labor, PLAINTIFF
Vv.
TONY AND SUSAN ALAMO FOUNDATION, ET AL.,
DEFENDANTS
ORDER
NOW on this ninth day of October, 1990, comes on
for consideration the plaintiff’s proposed judgment,
submitted to the court on September 13, 1990. And
the defendants responded with objections and com-
ments by letter dated September 28, 1990.
IT APPEARING to the court that the proposed
judgment should be revised in light of the defendants’
comments, it is ORDERED that the plaintiff submit
a revised proposed judgment as to the associates iden-
tified as having worked in the commercial businesses
of the defendants, reflecting a wage computation
based on the hours listed for each of those associates
in the commercial businesses, as specified by the de-
fendants’ answers to the plaintiff’s interrogatories.
(la)
Ls aieaniiataleaiaaaiie acai een
2a
It is further ORDERED that the gross wage
amounts are to be offset by the amounts previously
found by the court to be allocable to the benefits pro-
vided to those associates, that is, $225.03/month for
1976, $174.06/month for 1977, $225.30/month for
1978, $240.60/month for 1979, $269.92/month for
1980, and $306.38/month for 1981.
It is further ORDERED that the plaintiff submit
the revised proposed judgment, along with proposed
assessments for interest or other appropriate addi-
tions to the basic amounts, on or before October 26,
1990, and that the plaintiff provide the defendants
with a copy of the revised proposed judgment. It is
further ORDERED that the defendants may have
until and including November 9, 1990, to comment to
the court on the plaintiff's revised proposed judg-
ment. The court notes that the additional two months
necessitated by this revision of the judgment could
have been avoided if the defendants had included
their comments about the specific hours worked for
each associate in their original response to the plain-
tiff’s motion for entry of judgment instead of waiting
until after the plaintiff had prepared her proposed
judgment.
s/ Morris 8S. Arnold
Hon. Morris S. ARNOLD
United States District Judge
[Filed Oct. 9, 1990]
3a
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Civil No. 77-2183
ELIZABETH DOLE, Secretary of Labor,
U.S. Department of Labor, PLAINTIFF
US,
TONY AND SUSAN ALAMO FOUNDATION, ET AL.,
DEFENDANTS
ee
ORDER
NOW on this twentieth day of August, 1990, comes
on for consideration the plaintiff’s Motion for Entry
of Judgment, filed on July 30, 1990, in the above-
styled cause. And the defendants filed a response on
August 2, 1990.
IT APPEARING to the court that the plaintiff’s
motion should be granted in part, it is ORDERED
that the plaintiff prepare and submit to the court a
proposed judgment reflecting an award for each as-
sociate identified by the defendants and acknowledged
as having worked in the commercial businesses of the
defendants (see Exhibits A-F to plaintiff’s motion).
that award being in the amount of $1875.64 for 1976
associates, $2695.28 for 1977 associates, $2808.40 for
1978 associates, $3144.80 for 1979 associates, $3208.96
for 1980 associates, and $822.86 for 1981 associates.
4a
and the full amount of that award being assessed for
each associate listed as having worked the full year,
and a pro rata amount of that award being assessed
for each associate listed as having worked a partial
year.
It is further ORDERED that the plaintiff submit
the proposed judgment, along with proposed assess-
ments for interest or other appropriate additions to
the basic amounts, on or before September 14, 1990,
and that the plaintiff provide the defendants with a
copy of the proposed judgment. It is further OR-
DERED that the defendants may have until and in-
cluding September 28, 1990, to comment to the court
on the plaintiff’s proposed judgment.
s’ Morris S. Arnold
Hon. Morris S. ARNOLD
United States District Judge
[Filed Aug. 22, 1990]
5a
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Civil Action No. 77-2183
ELIZABETH DOLE, Secretary of Labor,
United States Department of Labor, PLAINTIFF
v.
TONY AND SUSAN ALAMO FOUNDATION, ET AL.,
DEFENDANTS
PARTIAL JUDGMENT
In accordance with the memorandum opinion and
order entered herein on April 25, 1989, it is hereby
ORDERED, ADJUDGED and DECREED that de-
fendants Tony and Susan Alamo Foundation and
Tony Alamo and their agents, servants, employees and
all persons in active concert or participation with
them be and they hereby are permanently enjoined
and restrained from violating the provisions of Sec-
tions 15(a)(2) and 15(a)(5) of the Fair Labor
Standards Act of 1938, as amended, 29 U.S.C. § 201
et seq., hereinafter referred to as the Act, in any of
the following manners:
A. Defendants Tony and Susan Alamo Founda-
dation and Tony Alamo shall not, contrary to Sec-
tions 6 and 15(a)(2) of the Act. 29 U.S.C. S$ 206
and 215(a) (2), pay any employee who is engaged in
commerce or in the production of goods for commerce,
6a
or who is employed in an enterprise engaged in com-
merce or in the production of goods for commerce,
within the meaning of the Act, wages at a rate of
less than the minimum hourly rates required by Sec-
tion 6 of the Act.
B. Defendants Tony and Susan Alamo Foundation
and Tony Alamo shall not, contrary to Sections 7 and
15(a)(2) of the Act, 29 U.S.C. $$ 207 and 215
(a) (2), employ an employee in commerce or in the
production of goods for commerce, or in an enterprise
engaged in commerce or in the production of goods
for commerce, within the meaning of the Act, for
workweeks longer than forty (40) hours, unless the
employee receives compensation for his employment
in excess of forty (40) hours at a rate not less than
one and one-half times the regular rate at which he
is employed.
C. Defendants Tony and Susan Alamo Foundation
and Tony Alamo shall not, contrary to Sections 11(c)
and 15(a)(5) of the Act, 29 U.S.C. §§ 211(c) and
215(a) (5), fail to make, keep and preserve adequate
and accurate records of the persons employed by them,
and the wages, hours and other conditions and prac-
tices of employment maintained by them as prescribed
by regulations issued by the Administrator of the Em-
ployment Standards Administration, United States
Department of Labor (29 C.F.R. Part 516).
It is further ORDERED, ADJUDGED and DE-
CREED that defendants Tony and Susan Alamo
Foundation and Tony Alamo be, and they hereby are,
enjoined and restrained from withholding payment of
minimum wages and overtime compensation in the
total amount of $31,802.74 which the Court finds is
due under the Act to their employees named in the
"7
(a
Summary of Unpaid Wages attached hereto in the
amounts stated thereon, together with prejudgment
interest thereon in the amount of $26,867.47 calcu-
lated in accordance with 26 U.S.C. §$ 6621 from the
median dates of withholding to June 1, 1989. It is
further
ORDERED, ADJUDGED and DECREED that, in
order to comply with the foregoing provisions of this
judgment, defendants Tony and Susan Alamo Foun-
dation and Tony Alamo shall deliver to plaintiff,
within ten (10) days from the date of entry of this
judgment, a cashier’s check payable to “Employment
Standards Administration, United States Department
of Labor” in the amount of $58,670.21. It is further
ORDERED, ADJUDGED and DECREED that, as
soon as practicable after this receipt of the aforesaid
cashier’s check, plaintiff shall distribute the proceeds
thereof to the employees named on the Summary of
Unpaid Wages attached hereto in the amounts stated
thereon less social security and income tax deductions.
Any net sums which have not been distributed within
3 years after plaintiff’s receipt of the aforesaid cash-
ier’s check because of plaintiff’s inability to locate the
proper persons or because of a refusal to accept such
sums, shall be deposited with the Clerk of the Court
who forthwith shall deposit such sums with the Treas-
urer of the United States pursuant to 28 U.S.C.
§ 2041. It is further
ORDERED, ADJUDGED and DECREED that all
demands for relief and claims asserted by plaintiff on
behalf of the present and former employees, also
_known as associates, of the Tony and Susan Alamo
Foundation that were not granted in the court’s order
8a
filed on November 26, 1986, or in this order are still
considered to be pending before the court.
SIGNED this 30th day of May, 1989.
s/ Morris S. Arnold
Hon. Morris S. ARNOLD
United States District Judge
[Filed May 30, 1989]
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lla
COMPUTATION OF OVERTIME COMPENSATION
DUE TO A.Z. HUDSON
May 1979
1 week x 10 hours per week x $3.335 per hour
1 week x 20 hours per week x $3.335 per hour
June 1979
2 weeks x 20 hours per week x $4.585 per hour
1 week x 20 hours per week x $5.000 per hour
June 29 th rough December 1979
65 weeks x 60 hours per week x $5.415 per hour
4 weeks x 10 hours per week x $5.415 per hour
TOTAL
183.40
100.00
2,111.85
216.60
$2,711.90
12a
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
No. CIV 77-2183
RAYMOND J. DONOVAN, SECRETARY OF LABOR,
UNITED STATES DEPARTMENT OF LABOR, PLAINTIFF
vs.
TONY AND SUSAN ALAMO FOUNDATION, ET AL.,
DEFENDANTS
MEMORANDUM AND ORDER
This case is now seven years old. It is presently
on remand because the Court of Appeals concluded
the remedy portion of the decision was in error. See,
Donovan v. Tony and Susan Alamo Foundation, 722
F.2d 397 (8th Cir. 1983).
Specifically, the Court of Appeals said:
“we conclude that the District Court’s pro-
posed procedure requiring ‘associates’ to initiate
proceedings to obtain payment of amounts due
them does not comport with the policy of the
statute. It would place on the employee a bur-
den properly falling upon the employer.” Jd. at
403.
The Secretary has not asked for the opportunity to
submit additional evidence which is, of course, con-
sistent with the position taken at the several hear-
ings conducted before the original decision was made.
The Secretary has consistently argued that this court
should assume that all *‘associates” of the Foundation
13a
are also full time employees of the Foundation’s com-
mercial enterprises. For example, the Secretary ar-
gued that in 1976 there were 316 “associates” of the
Foundation, and this court should award an amount
which will compensate all 316 for sixty hours work
per week. During the course of the hearings, this
court repeatedly told the Secretary’s attorneys that
there was no evidentiary basis for concluding that
all associates were full time employees of the com-
mercial businesses. Specifically, this court concluded:
First, there is no basis for concluding, as the
Secretary suggests, that all 300 of the associ-
ates worked in the Foundation’s commercial
businesses. To the contrary, the evidence reflects
that the associates have constructed, decorated
and furnished a number of residences, an apart-
ment building, a church, and various other struc-
tures used by the Foundation and its associates
for non-commercial purposes. The labor for
much of this construction and the continuing
maintenance of the structures was furnished by
the associates. As previously mentioned, some
associates work at the Foundation in non-
commercial jobs, such as babysitting at the nur-
sery, cooking for the other associates, ete. Fur-
thermore, the Foundation produces a television
show which obviously requires some non-commer-
cial work time; some associates “witness” on the
street, in hospitals, jails and other places; and
some help organize new churches. Additionally,
some associates are employees of businesses other
than the Foundation’s and simply turn their pay-
checks over to the Foundation. In any event,
while it is difficult to reach any reasonably accu-
rate conclusion as to how many associates work
l4a
in the commercial businesses at any particular
time, it is not reasonable to conclude that all of
the adult associates are working in the commer-
cial businesses, or, that the ones who do work in
the commercial businesses do so on the regular
basis suggested by the Secretary.
Donovan v. Tony and Susan Alamo Foundation, 567
F.Supp. 556, 563 (W.D. Ark. 1982).
While this court is aware of the decision in Ander-
son v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946),
the language of that case does not solve the problem.
A threshold burden on the claimant imposed by Mt.
Clemens Pottery Co. is the requirement that the
worker establish his status as an “employee”. This
threshold requirement is noted by the Court of Ap-
peals in the following language:
“we hold that an employee has carried out
his burden if he proves that he has in fact per-
formed work for which he was improperly com-
pensated and if he produces sufficient evidence to
show the amount and extent of the work as a
matter of just and reasonable inference.” (Em-
phasis added.) 328 U.S. at 687-88.
The Secretary chose to treat this claim in the man-
ner of a “class action”. A few former associates of
the Foundation testified that they worked in the
Foundation’s commercial businesses and they de-
scribed generally the hours they worked. They also
testified that other, generally unidentified, associates
worked similar hours. Based upon such testimony,
the Secretary argued that all associates should he
compensated at the rate of 60 hours per week. This
court did not accept that argument. Under the evi-
dence, the term “associate” simply cannot be used
15a
interchangeably with the term “employee” under the
Act.
For example, William John Baxter, a former “asso-
ciate’, testified that from January 1, 1976, through
March, 1977, he worked in various commercial busi-
nesses operated by the Foundation at Alma, Arkansas,
and Nashville, Tennessee. In March, 1977, he said he
“worked on the chapel” at Alma. From October,
1977, through the spring of 1978, he worked for
Planters Peanut Company and Ayers Furniture Com-
pany in Fort Smith. He was paid by those two em-
ployers and “donated” his check to the Foundation.
There is nothing in the Act, or cases decided under
the Act, which leads this court to believe that Mr.
Baxter should be treated as an “employee” of the
Foundation for the time he “worked on the chapel”
or She time he was employed by Planters Peanut Com-
pany and Ayers Furniture Company. If a person
wants to donate his paycheck to a religious organiza-
tion, nothing in the Fair Labor Standards Act sug-
gests that he be treated as an employee of the organ-
ization because of that donation.
The remedy procedure devised by this court was
not calculated to shift any burden to the employee.
Its purpose was simply to identify those associates
who worked in commercial businesses and the time
periods covered by their work. Such a procedure is
routinely used in the remedy phase of class action
employment cases under Title VII.
Nevertheless, and since the remedy procedure orig-
inally ordered in this case has been disapproved, the
court will look to the record in order to identify those
“associates” who were employees of the Foundation’s
commercial] businesses and who were not compensated
for their work. The following associates are entitled
l6a
to such compensation as provided by the Act, less the
value of “benefits” received from the Foundation dur-
ing the period for which compensation is awarded.
(1)
(2)
Lucien Claude—Mr. Claude was an asso-
ciate of the Foundation for seven and one-
half years. The relevant time period is Jan-
uary 1, 1976, until he left the Foundation on
May 23, 1979. He testified by deposition
that he worked some jobs and turned his
paycheck over to the Foundation. At other
times, he worked for Foundation businesses
and was not paid. Although the testimony is
vague and general, there is no doubt Mr.
Claude “performed work for which he was
improperly compensated”. He is awarded
such sums as required by the Act to compen-
sate him for 40 hours per week from Janu-
ary 1, 1976, through May 23, 1979.
Ralph Malone—Mr. Malone was an asso-
ciate of the Foundation during the period
from January 1, 1976, until he left on April
1, 1978. Apparently he spent some of his
time “cooking for people at the church” and
acting as a driver of an “agent” of the
Foundation. How such efforts are compen-
sable under the Act was not explained by the
Secretary. Nevertheless, the evidence sup-
ports an inference that Mr. Malone worked
in a number of Foundation businesses begin-
ning in August, 1976, until he left the Foun-
dation. He is awarded such sums as re-
quired by the Act to compensate him for 60
hours per week from August 1, 1976, until
April 1, 1979.
(3)
(4)
(5)
(6)
17a
Debra Malone—Mrs. Malone was an “asso-
ciate” who worked in the sew'ng room and
as a waitress at the Foundation’s restaurant.
The evidence supports an inference that she
worked 60 hours per week from January 1,
1976, through April 1, 1976, and was not
properly compensated.
Lane Lowise Petri—Mrs. Petri worked an
average of 44 hours per week from January
1, 1976, through March 7, 1976. She is en-
titled to compensation as provided by the
Act.
William John Baxter—Mr. Baxter is en-
titled to compensation provided under the
Act for 60 hours per week during the follow-
ing time periods:
January 1, 1976, until March 1, 1977
May 1, 1978, until August 16, 1978.
He will not be awarded any compensation
for the time he “worked on the chapel” or
worked for outside employers and “donated”
his paycheck to the Foundation.
Richard T. Hidell—Mr. Hidel] joined the
Foundation in January, 1976. He worked
12 hours a day, six days a week, in various
commercial businesses until he left the Foun-
dation in August, 1978, except for one two
month period that he worked 12 hours a day,
seven days a week. He began as a buyer in
California for the Foundation businesses
and then moved to Arkansas where he
worked for the construction company, the
nursery and the roofing company. During
the two month nevriod, he worked as a maitre
18a
d’ in the restaurant. He is awarded such
sums as required by the Act to compensate
him for a period from January 1, 1976, to
August 31, 1978, at a rate of 12 hours a
day, six days a week, except for eight weeks
at 12 hours a day for seven days a week
during 1976.
Four other “associates” of the Foundation testified
at the hearings in behalf of the Foundation. Although
they vehemently denied they were entitled to any
compensation for their work in the Foundation’s com-
mercial enterprises, the evidence supports an infer-
ence that William R. Levy, Ann Elmore, Larry La
Roche and Edward Mick performed work for which
they were improperly compensated. Ann Elmore,
Larry La Roche and Edward Mick are entitled to
compensation for 40 hours per week from January
1, 1976, until the order of injunctive relief was en-
tered. William R. Levy is entitled to compensation
for 40 hours per week from June 1, 1979, until the
order of injunctive relief was entered.
There were, no doubt, other “associates” of the
Foundation who performed work for which they were
not properly compensated under the Act. This Court
does not believe, however, that there is credible evi-
dence upon which to base an inference as to the iden-
tity of those associates, the time period which they
worked, or the compensation they are due. Absent
some reasonable basis in the evidence for such find-
ings, this court is not willing to award the $15,000,000
or so in benefits sought by the Secretary. In any
event, this court has made all the factual findings
believed possible with this record.
The Secretary is hereby ordered to submit a pro-
posed judgment within 15 days which reflects the
19a
sums due each employee under the Act for the pe-
riods covered by the awards, less the value of any
“benefits” afforded the employees during the periods
for which compensation is due. The “benefits” are
to be determined from the schedules of benefits found
in the Memorandum Order filed December 13, 1982.
The claims asserted by the Secretary in behalf of
associates of the Foundation who are not specifically
granted relief as part of this order or previous orders
of this court are dismissed without prejudice.
September 10, 1984
/8/ [Illegible]
United States District Judge
[Filed Sep. 11, 1984]
20a
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Civil No. 77-2183
WILLIAM E. Brock, Secretary of Labor,
United States Department of Labor, PLAINTIFF
Vv.
TONY AND SUSAN ALAMO FOUNDATION, ET AL.,
DEFENDANTS
JUDGMENT
In accordance with the memorandum and order en-
tered herein on September 11, 1984, as amended, it is
hereby ORDERED, ADJUDGED, AND DECREED %
that defendants Tony and Susan Alamo Foundation
and Tony Alamo and their agents, servants, employ-
ees, and all persons in active concert or participation
with them be, and they are hereby, permanently en-
joined and restrained from violating the minimum
wage, overtime, and record-keeping provisions of the
Fair Labor Standards Act of 1938, as amended, 29
U.S.C. $§ 215(a) (2), 215(a)(5), hereinafter re-
ferred to as the Act, in any of the foregoing manners:
A. Defendants Tony and Susan Alamo Foundation
and Tony Alamo shall not, contrary to 29 U.S.C.
S$ 206 and 215(a) (2), pay any employee who is en-
gaged in commerce or in the production of goods for
commerce, or who is employed in an enterprise en-
gaged in commerce, or in the production of goods for
commerce within the meaning of the Act, wages at a
rate less than the minimum hourly rates required by
Section 6 of the Act, 29 U.S.C. § 206.
le
2la
B. Defendants Tony and Susan Alamo Founda-
tion and Tony Alamo shall not, contrary to 29 U.S.C.
S§ 207 and 215(a) (2), employ any employee in com-
merce or in the production of goods for commerce,
within the meaning of the Act, for workweeks longer
than forty hours, unless the employee receives com-
pensation for his employment in excess of forty
hours at a rate not less than one and one-half times
the regular rate at which he is employed.
C. Defendants Tony and Susan Alamo Foundation
and Tony Alamo shall not, contrary to 29 U.S.C.
S$ 211(c) and 215(a)(5), fail to make, keep, and
preserve adequate and accurate records of the per-
sons employed by them, and the wages, hours, and
other conditions and practices of employment main-
tained by them, as prescribed by regulations issued
by the Administrator of the Employment Standards
Administration, United States Department of Labor
(29 C.F.R. Part 516).
It is further ORDERED, ADJUDGED, AND DE-
CREED that defendants Tony and Susan Alamo
Foundation and Tony Alamo be, and they are hereby,
enjoined and restrained from withholding payment
of minimum wages and overtime compensation in the
total amount of $113,636.94 that the court finds is
due under the Act to the employees named in the
Summary of Unpaid Wages attached hereto in the
amounts stated thereon, together with prejudgment
interest thereon in the amount of $69,359.20 caleu-
lated in accordance with 26 U.S.C. § 6621 from the
median dates of withholding to December 1, 1986.
It is further ORDERED, ADJUDGED. AND DE.
CREED that, in order to comply with the foregoing
provisions of this judgment, defendants Tony and
Susan Alamo Foundation and Tony Alamo shall de-
th A a A Se ET mer _—_ . - a. ee acon ,
22a
liver to plaintiff, within fourteen days from the date
of entry of this judgment, a cashier’s check payable
to “Employment Standards Administration, United
States Department of Labor” in the amount of
$182,996.14.
It is further ORDERED, ADJUDGED, AND DE-
CREED that as soon as practicable after receipt of
the aforesaid cashier’s check, plaintiff shall distribute
the proceeds thereof to the employees named on the
Summary of Unpaid Wages attached hereto in the
amounts stated thereon less social security and in-
come tax deductions. Any net sums that have not
been distributed within three years after plaintiff’s
receipt of the aforesaid cashier’s check because of
plaintiff’s inability to locate the proper persons or
because of a refusal to accept such sums shall be de-
posited with the Clerk of this Court, who forthwith
shall deposit such sums with the Treasurer of the
United States pursuant to 28 U.S.C. § 2041.
It is further ORDERED, ADJUDGED, AND DE-
CREED that all demands for relief and claims as-
serted by plaintiff on behalf of the present and former
employees, also known as associates, of the Tony and
Susan Alamo Foundation that are not granted herein
be, and are hereby, denied and dismissed without
prejudice.
SIGNED this 25th day of November, 1986.
s/ Morris S. Arnold
Hon. Morris S. ARNOLD
United States District Judge
[Filed Nov. 26, 1986]
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Woo.s. GOVERNMENT PRINTING OFFICE; 1992
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.