ILNews

Court rules on first impression FLSA issue

Back to TopE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

ADVERTISEMENT