FOSTER v. KRAFT FOODS GLOBAL, INC.Civil Action No. 09-453.
TERRI L. FOSTER, on behalf of herself and all others similarly situated, Plaintiff,
KRAFT FOODS GLOBAL, INC., Defendant.
KRAFT FOODS GLOBAL, INC., Defendant.
United States District Court, W.D. Pennsylvania.
August 27, 2012.
MEMORANDUM AND ORDER
CATHY BISSOON, District Judge.
For the reasons that follow, Defendant's Motion for Summary Judgment (Doc. 45) will be denied, and the Court holds that payment of overtime under the fluctuating workweek method, at one-half times an employee's "regular" or "basic" rate, as opposed to one and one-half times (or more), is impermissible under 34 Pa. Code § 231.43(d)(3). The remainder of the parties' Motions (see Docs. 52, 54, 70, 71 & 73) will be resolved as described below.
A. Defendant's Motion for Summary Judgment (Doc. 45)
1. The Fluctuating Workweek Under the Pennsylvania Minimum Wage Act
The parties' disputes center around the fluctuating workweek method of overtime compensation. The origins of this method date back to a Supreme Court decision in 1942, and it subsequently has been reduced to federal regulation in 29 C.F.R. § 778.114. See generally Anthony J. Galdieri, Esq., The Fluctuating Workweek: How It Works, How It's Treated, How It's Perceived, 8 Pierce L. Rev. 157, 159 (Feb. 2010) (citing
Id. at 159-60 (citing 29 C.F.R. § 778.114) (internal citations and footnotes omitted).
The question in this case is whether the fluctuating workweek method (hereinafter, "the FWW method") is permissible under the Pennsylvania Minimum Wage Act ("PMWA") and the regulations promulgated thereunder. Defendant maintains that the FWW method is permissible under 34 Pa. Code § 231.43(d)(3), which, in relevant part, states:
Defendant does not claim that its compensation policy is permissible under the provisions in Section 231.43(b), regarding wages paid on a "per-day" or "per-job" basis:
Id.; cf. Def.'s Br. (Doc. 46) at 6-11 (citing, in every instance, Section 231.43(d) as basis for permissibility of FWW method) and id. at 8 (stating that "it is irrelevant" whether Defendant's policy complied with Section 231.43(b)).
In deciding whether the FWW method complies with Pennsylvania law, the Court does not write on a blank slate. In
As Judge Conti observed, a plain reading of Section 231.43(d) requires Defendant to pay its employees in question at a "rate
Id., 833 F. Supp. at 476 (some citations and footnote omitted, emphasis added); see also generally
The universe of legal authority addressing the permissibility of the FWW method under the PMWA is a relatively closed one, and having reviewed all of that authority, the Court finds most persuasive the decisions in
In a later
In a vacuum, the
This Court has no reason to believe that the
Defendant also makes much of Judge Conti's assertion in
The Court further concludes that the language in
The undersigned, like Judge Conti, need not predict whether Pennsylvania courts would recognize the FWW method as permissible under the PMWA. The undersigned joins Judge Conti, however, in holding that payment of overtime under the FWW method at one-half times the regular or basic rate, as opposed to one and one-half times (or more), is impermissible under the plain language of 34 Pa. Code § 231.43(d)(3).
For the reasons stated above, the Court finds the other authority relied upon by Defendant either distinguishable or unpersuasive. The Court further notes that the opinion letter of the Pennsylvania Labor Law Compliance Division, dated February 26, 2003, is, by its own terms, inapposite. See Ltr. (attached under Doc. 46, at pgs. 29 through 31) ("The issue of fluctuating workweek is a matter of law that requires judicial interpretation and resolution.").
Finally, the Court would be remiss in failing to directly address the theoretical underpinnings of Defendant's arguments in support of the FWW method under the PMWA, summarized by counsel as follows:
Def.'s Br. (Doc. 46) at 6 (emphasis added).
While this is, no doubt, the rationale underlying the FWW method under the federal regulations, the fact remains that nowhere in 34 Pa. Code § 231.43(d)(3) is it stated or implied that the "1 ½ times" means payment of "1 times" under a "salary," and "½ times" through additional overtime compensation. Had the regulators meant that overtime should be compensated at an "extra half-time pay" rate, they could have said so, as they did in Section 231.43(b). Accord 29 C.F.R. § 778.114(a) (explicitly referencing "one-half [the regular] rate"). The state regulators did
For all of the reasons stated above, the Court concludes, and therefore holds, that payment of overtime under the FWW method, at any rate less than one and one-half times the "regular" or "basic" rate, is impermissible under 34 Pa. Code § 231.43(d)(3).
2. Plaintiff's Purported Failure to Work More than 40 Hours Per Week
Defendant also requests summary judgment on the basis that the named Plaintiff, Terri Foster, did not work over 40 hours in a workweek during the relevant timeframe. See Def.'s Br. (Doc. 46) at 19-20 (citing Defendant's time records for Plaintiff). Plaintiff has testified, however, that she did work in excess of 40 hours per week during that timeframe, and that management forbade her to record any overtime. See Pl.'s Dep. Tr. (filed under Doc. 51-3) at 92-95, 115-16. Read in a light most favorable to her, Plaintiff's testimony presents issues of material fact regarding whether she did, in fact, work overtime, whether Defendant knew or should have known that Plaintiff worked overtime, and whether Defendant forbade or discouraged her from recording overtime worked. See generally
Under the circumstances, Defendant is not entitled to summary judgment.
B. Plaintiff's Motion for Class Certification (Doc. 54)
Although the circumstances surrounding Plaintiff's purported working of unrecorded overtime do not warrant the entry of summary judgment against her, they do raise questions regarding the typicality of her claims under Federal Rule of Civil Procedure 23(a). As Defendant highlights, Plaintiff's potential entitlement to overtime payment is reliant on her post-hoc assertions that she worked more than 40 hours per workweek but did not record those overtime hours. See discussion supra. In addition, Plaintiff only worked a total of sixteen (16) days during the relevant timeframe (July 1, 2007 to present), before being placed on disability leave and never returning to work. See Def.'s Br. (Doc. 46) at 4; see also Pl.'s Resp. to Def.'s Stmt. of Undisputed Facts (Doc. 61) at ¶ 3 (admitting essentially same).
The typicality requirement considers, among other things, whether the "factual position of the representative is markedly different from that of other members of the class even though common issues of law or fact are present."
Accordingly, Plaintiff's Motion for Class Certification will be denied, without prejudice.
C. Plaintiff's Motion for Leave to Add Additional Named Plaintiffs (Doc. 73)
In light of the Court's ruling regarding the FWW method, and its concerns as to the current named-Plaintiff's typicality under Rule 23, the Court concludes that granting Plaintiff's request for leave to add named plaintiffs is appropriate. See generally
Contrary to Defendant's assertion, allowing Plaintiff to amend would not "require this Court and [the p]arties to re-litigate a three-year old case from scratch." See Def.'s Br. (Doc. 81) at 1. Rather, the Court's adjudication of the Motions addressed herein has significantly narrowed the issues in this case. See discussions supra (resolving permissibility of FWW method under PMWA, and current named-Plaintiff's ability to withstand summary judgment on her individual claims). During the pendency of this "three-year-old case," the parties have expended substantial time and energy effectuating settlement of a portion of the original putative class period. See generally Def.'s Br. (Doc. 46) at 1. The case also was stayed for over nine months, pending Judge Conti's adjudication of the FWW issue in
As to delay, while Plaintiff's counsel could and should have addressed issues regarding the appropriateness of class representative(s) sooner, denying leave to join additional plaintiff(s) would only encourage the prosecution of another lawsuit, thereby resulting in further delay. See Compl. in
Under the specific circumstances presented, the Court concludes that the interests of justice and efficiency promoted by granting leave to amend outweigh Defendant's assertions of undue prejudice and delay. Thus, Plaintiff's Motion will be granted.
D. The Parties' Remaining Motions, and Status/Settlement Conference
The Court quickly may dispose of the parties' remaining Motions.
Plaintiff's Motion for Summary Judgment (Doc. 52) will be denied. The subject of Plaintiff's Motion, the FWW method, already has been adjudicated within the context of Defendant's cross-Motion for Summary Judgment. Plaintiff's Motion does not attempt to demonstrate the named-Plaintiff's individual entitlement to final judgment, and the Court already has concluded that issues of material fact preclude such a determination at this stage. See discussion supra (regarding whether Plaintiff did, in fact, work overtime, et cetera).
Defendant's Motion to strike the affidavits of Plaintiff (Doc. 71) and her co-workers (Doc. 70) will be denied as moot. The Court's summary judgment rulings do not rely on these submissions, although the undersigned believes, and therefore holds, that the co-workers' affidavits may be considered in support for Plaintiff's Motion for leave to add parties.
Finally, the Court will schedule a status/settlement conference to discuss with counsel where this case will go from here. Given the good faith, reasonable and ultimately successful efforts of the parties to settle the claims now asserted under Civil Action No. 11-1514, the undersigned believes that further settlement discussions and/or ADR may be fruitful, in light of the Court's ruling on the FWW issue.
At the Conference, persons with full settlement authority must be present. A person with full settlement authority is not someone who is required to consult with other individuals, by telephone or otherwise, to obtain approval for any proposed settlement term or amount.
In addition, counsel shall be prepared to discuss the status, and potential dismissal as appropriate, of the claims filed under Civil Action No. 12-205. These discussions will be had during, or immediately after, the Conference in this case, and an order scheduling Civil Action No. 12-205 for conference will be entered in its docket.
Consistent with the foregoing, the Court enters the following:
Defendant's Motion for Summary Judgment (
IT IS SO ORDERED.
Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.
- No Cases Found