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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. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. 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.

  4. 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.

  5. 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.

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