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Court rules on first impression FLSA issue

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In denying summary judgment for either party in a dispute involving the Fair Labor Standards Act, the U.S. District judge noted the issue appears to be one of first impression in the 7th Circuit.

In Nicholas S. Pennington v. G.H. Herrmann Funeral Homes Inc., No. 1:09-CV-390, Nicholas Pennington, a licensed funeral director and embalmer, sued his former employer, G.H. Herrmann Funeral Homes, for violating the FLSA and Indiana Wage Payment Statute by not paying him a proper overtime premium under the FLSA for hours worked in excess of 40 per workweek.

Pennington worked for the funeral home for seven years and worked two alternating work schedules: 36 hours a week during day shifts and 101.5 hours per week during night shifts. He was paid more per hour during the day shift than the night shift, which included 61.5 hours of overtime.

The FLSA lets an employer pay an employee overtime at one-and-one-half times a different hourly rate than the employee’s regular hourly rate when the employee performs “two or more kinds of work” and has reached an agreement with the employer that different rates apply to different kinds of work. But neither the FLSA nor its regulations have defined the term “different kinds of work” and there is little caselaw on the matter, noted Chief Judge Richard L. Young.

Chief Judge Young relied on Townsend v. Mercy Hosp. of Pittsburgh, 862 F.2d 1009 (3d Cir. 1988), in which the court found that “active work” performed by operating room personnel during their regular shift was qualitatively different than the “stand-by/non productive” periods on the overtime off-hours shift. It also held the hospital’s compensation scheme didn’t run afoul of the FLSA because it based the operating room personnel’s active duty pay during the overtime shift upon their regular weekday base rate of pay.

The dispute in the instant case is whether Pennington’s duties differed depending on which shift he worked. He claimed he did the same type of work, only did it less frequently at night; the funeral home claimed his duties were different.

“The court agrees that, to the extent Plaintiff performed 'funeral director' type work at night, Plaintiff’s job duties during the day were the same job duties as those he performed at night,” wrote the chief judge.

It would seem based on Townsend that the funeral home had to pay Pennington his regular hourly rate and base his overtime pay on that rate for the time spent at night performing those funeral director-type duties. But Chief Judge Young declined to grant summary judgment to either side because Pennington’s night duties and the frequency with which he did them are disputed.

Chief Judge Young denied summary judgment on the issues of bona fide hourly rate, normal applicable rate for overtime wages, different rates for different shifts, and if there was a violation of the Indiana Wage Payment Statute. He did grant summary judgment in favor of the funeral home with respect to Pennington’s liquidated damages claim.
 

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  1. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  2. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  3. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

  4. Duncan, It's called the RIGHT OF ASSOCIATION and in the old days people believed it did apply to contracts and employment. Then along came title vii.....that aside, I believe that I am free to work or not work for whomever I like regardless: I don't need a law to tell me I'm free. The day I really am compelled to ignore all the facts of social reality in my associations and I blithely go along with it, I'll be a slave of the state. That day is not today......... in the meantime this proposed bill would probably be violative of 18 usc sec 1981 that prohibits discrimination in contracts... a law violated regularly because who could ever really expect to enforce it along the millions of contracts made in the marketplace daily? Some of these so-called civil rights laws are unenforceable and unjust Utopian Social Engineering. Forcing people to love each other will never work.

  5. I am the father of a sweet little one-year-old named girl, who happens to have Down Syndrome. To anyone who reads this who may be considering the decision to terminate, please know that your child will absolutely light up your life as my daughter has the lives of everyone around her. There is no part of me that condones abortion of a child on the basis that he/she has or might have Down Syndrome. From an intellectual standpoint, however, I question the enforceability of this potential law. As it stands now, the bill reads in relevant part as follows: "A person may not intentionally perform or attempt to perform an abortion . . . if the person knows that the pregnant woman is seeking the abortion solely because the fetus has been diagnosed with Down syndrome or a potential diagnosis of Down syndrome." It includes similarly worded provisions abortion on "any other disability" or based on sex selection. It goes so far as to make the medical provider at least potentially liable for wrongful death. First, how does a medical provider "know" that "the pregnant woman is seeking the abortion SOLELY" because of anything? What if the woman says she just doesn't want the baby - not because of the diagnosis - she just doesn't want him/her? Further, how can the doctor be liable for wrongful death, when a Child Wrongful Death claim belongs to the parents? Is there any circumstance in which the mother's comparative fault will not exceed the doctor's alleged comparative fault, thereby barring the claim? If the State wants to discourage women from aborting their children because of a Down Syndrome diagnosis, I'm all for that. Purporting to ban it with an unenforceable law, however, is not the way to effectuate this policy.

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