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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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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