Federal circuit courts have, however, previously addressed whether back-pay awards properly include overtime under other employment statutes, albeit statutes with different wording. Those courts have concluded that overtime is appropriately recoverable under the Uniformed Services Employment and Reemployment Rights Act, Title VII of the Civil Rights Act of 1964, and the Worker Adjustment Retraining and Notification Act, for example.
Given the consistent treatment of overtime as recoverable damages under other employment statutes, the Pagan-Colon court saw no reason why it should not be included in a back-pay award under the FMLA. The court concluded that overtime falls within the “other compensation” permitted as recoverable under the statute. The ruling did not distinguish FMLA retaliation claims from FMLA direct violation claims.
The availability of overtime as a component of FMLA damages is not particularly surprising. “Typically in a lot of other employment statutes, overtime is available,” says Brian W. Koji, Tampa, cochair of the ABA Section of Litigation’s Employment & Labor Relations Committee. “Although the enforcement provision of the FMLA is drafted a little different than some other employment law statutes, it’s not so different that I would have imagined another result would have occurred,” he adds.
While the First Circuit justified its ruling based on the ability to recover “other compensation” under the FMLA, Koji believes “one could argue that overtime even falls under ‘wages, salary, [and] employment benefits’ recoverable under the statute.”
Consistency of Overtime Important
In addressing recoverability of overtime pay, the Pagan-Colon court rejected Walgreens’s position that overtime categorically was not recoverable under the FMLA based on the Eighth Circuit’s decision in Thorson v. Gemini, Inc. [PDF]. The First Circuit’s interpretation of Thorson was that the Eighth Circuit rejected the plaintiff’s overtime claims because the calculation of overtime hours was “too speculative to award,” not because it was categorically unavailable.
Pagan, by contrast, introduced evidence that he worked an average of 6.5 overtime hours per week for five months prior to his termination. He admitted pay stubs into evidence to substantiate this figure along with his own testimony. Walgreens’s position, which the court rejected, was that the court should have used 12 months of overtime history rather than the five months proffered by Pagan, since that data would show less average overtime worked. The First Circuit concluded that considering five months of data, which it characterized as a “reasonably large sample size,” in calculating the overtime award was not clearly erroneous justifying reversal.
The court’s acceptance of five months of overtime history and rejection of 12 months highlights the difficulty in calculating overtime awards. “There is no clear standard of how you’re going to calculate the amount of overtime—whether it is the past year or a few months—so it is rather speculative,” says Darryl G. McCallum, Baltimore, cochair of the Programming Subcommittee of the Section of Litigation’s Employment & Labor Relations Committee.
“Distinguishing what is speculative and what is not is the $6 million dollar question, and there is not an easy answer to that,” agrees Koji. “The court must look at the totality of the circumstances, such as the employee’s schedule, the hours they typically work, and the reasons for overtime,” he adds. “If the overtime is isolated or sporadic, there’s a better argument they’re not entitled to recover overtime, but if it’s regular and recurring they’ll probably get it.”
Establishing the Proper Overtime Amount
Litigators faced with overtime claims should look at the circumstances not only of their case but also of the industry generally. “Several factors could be important in whether the employee actually would have received the amount of overtime being requested,” according to McCallum. “The amount the employer is paying out and doing in terms of overtime, whether there has been a downturn in the business and not as much overtime being worked, [and] whether active steps are being taken to cull out overtime” are all factors that McCallum believes should be discovered and introduced to establish the proper overtime award.
Jonathan B. Stepanian is an associate editor for Litigation News.