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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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  3. Law school is social control the goal to produce a social product. As such it began after the Revolution and has nearly ruined us to this day: "“Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men [i.e., politicians] are, or have been, legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habitude to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate.” ? Alexis de Tocqueville, Democracy in America

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