FLSA Overtime Related Reply Brief Filed In Gainesville FL

Plaintiff files this Reply to Defendant’s Response to Plaintiff’s First Amended Motion to Conditionally Certify Collective Action (Doc. 11) as follows:
Allegations of the Complaint
The gravamen of the Plaintiff’s Complaint is that the Defendant had a policy of excluding bonuses from the calculation of overtime (from now on referred to as the “Policy”).  Both Plaintiff and her coworkers were, and still are, subject to the Policy.
Accordingly, Plaintiff’s Complaint alleges in paragraph 17 that “Defendant has a pattern and practice of calculating overtime by excluding the Bonus Rate from the calculation of the overtime rate.” The Complaint also alleges in paragraph 18 that “By excluding the Bonus Rate from the calculations of overtime, the Defendant violated the FLSA.”  As a result of the Defendant’s Policy, as claimed in paragraphs 23 and 25, the Plaintiff and those similarly situated were not paid correctly for overtime due.
Defendant’s Proposed Notice
A comparison of Paragraphs V and III of both the Plaintiff’s and Defendant’s proposed notices is essential.  Paragraph V of the Plaintiff’s Proposed Notice (Doc. 9-5) provides as follows (e.s.):
If you were employed by the Defendant as a Caregivers and Companion Sitters for any period during the three years before the date of this Notice and you believe that the Defendant has failed to pay you for all overtime compensation to which you are entitled, you have the right to join the pending lawsuit against [Defendant].
Defendant’s Proposed Notice at paragraph III (Doc. 11, Page 11) changes the above to this (e.s.):
If you were employed by Sal-Mark as a Companion/Sitter and CNA/HOME Health Aide Caregiver for any period since June 30, 2012, and you believe that Sal-Mark has failed to pay you for all overtime compensation based upon the wage scale form, you have the right to join the pending lawsuit against Sal- Mark.
Defendant’s proposed Notice misleads potential class members into thinking that they must have 1) been provided “the wage scale form” to be part of the case and 2) be paid “based upon” it.
Defendant’s “the Wage Scale Form” Reference is Misleading
Defendant’s proposed Notice never explains to the potential class member what “the wage scale form” is and how it relates to them.  It is misleading because it places the burden on the employee to figure out 1) what “the wage scale form” is and 2) whether they were paid “based upon” that form.  It provides no definitions, explanations, or other guidance.
The provision was inserted by the Defendant to create confusion amongst potential class members who may not know what “the wage scale form” is and may never have been provided one by the Defendant.  Even more confusing would be the potential class member’s knowledge that Plaintiff was provided with a wage scale form, but they were not.   Is “the wage scale form” the one Plaintiff filed as Doc. 9-1, or some other form the Defendant either has in its possession or provided to some or all of its employees?
What if the potential class member never received a “wage scale form,” but their bonuses were not included in their overtime rate?   That potential class member should be permitted to join this case — but a direct reading of the Defendant’s Notice would lead them to the conclusion that they could not.  At best, the use of the undefined and unclear term “the wage scale form” is ambiguous and intentionally confusing to potential class members. It unnecessarily complicates the proposed Notice without any corresponding benefit.
The Wage Scale is Evidence of the Defendant’s Policy, Not the Basis of the Lawsuit
Whether or not the Defendant’s employees were provided, the “Wage Scale” form is immaterial.  The Defendant did not violate the FLSA by creating and handing out the “Wage Scale” form; the Defendant violated the FLSA by enacting a policy that failed to include bonuses in the overtime rate. The Plaintiff’s cause of action is for the unpaid overtime resulting from the payment of bonuses that are not included in the employees’ regular rates.
The “Wage Scale” is evidence that Defendant engaged in this practice (and had this Policy).  The practice of failing to include bonuses in the regular rate is the point of the case.
Defendant’s Notice Improperly Limits the Class by Not Including all persons “Subject To” the Policy
The Defendant’s Response (Doc. 11) is misleading when compared to the Notice it proposes.  Paragraphs 8 and 9 of its argument admits that the class should consist of persons “subject to this Wage Scale Form” (e.s.).  However, when drafting its Notice (via section III), the Defendant’s Notice states that persons have the right to participate if they were wrongfully paid “based upon the wage scale form.” (e.s.)  That sleight of hand has severe repercussions to potential class members.
By attempting to exclude persons who never received the Wage Scale Form or who do not even know what it is, the Defendant is trying to exclude persons from this case that were actually “subject to” the Defendant’s Policy. This is contrary to the Defendant’s own admission that these persons should be entitled to notice of this action.
Thus, considering the Defendant’s admission that the class should consist of persons “subject to [the] Wage Scale Form,” the Notice should not be limited only to persons who know they were paid “based upon” that form.  The Policy is the linchpin, not whether or not an employee actually received a copy of “the wage scale form” or Defendant’s illegal Policy.
Whether or not these employees actually obtained the wage scale form nor not, they were denied the overtime due based upon the Defendant’s Policy. Therefore, it is immaterial whether the employee obtained or was provided with a copy of the Defendant’s illegal Policy and/or the wage scale form, only that they were “subject to” the Policy and denied overtime as a result of said Policy.  Thus, the Plaintiff’s Proposed Notice is infinitely more fair and clear.
Respectfully submitted this April 8, 2014,
/s/ Michael Massey
Fla. Bar. No. 153680
I HEREBY CERTIFY that on this April 8, 2014, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system, which will send Notice of the electronic filing to counsel for the Defendant.
/s/ Michael Massey
Fla. Bar. No. 153680
855 E. Univ. Ave.
Gainesville, FL 32601


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