18th Annual Workplace Class Action Report - 2022 Edition

246 Annual Workplace Class Action Litigation Report: 2022 Edition facts showed Plaintiff was subject to the retail commission exemption because "more than 50%" of her pay for the Company’s one-year representative period was for bona fide commissions. Id . at *12-13. The Court found that Plaintiff received a bona fide commission, as Plaintiff’s compensation plan was made in good faith, i.e. , without fraud or deceit, as a fair reading of the statute requires. Id . at *24-25. The Court determined that the commission structure was fair, adequately explained to Plaintiff, the commission payments were not tied to the hours she worked, and she had incentive to sell items eligible for higher commissions to increase her compensation. Accordingly, the Court ruled that Plaintiff was correctly classified as an exempt employee under the commissioned retail sales exemption. In addition, the Court ruled that as to the PMWA claim, since the determination of the FLSA claim rested on an interpretation of the plain language of its retail commission exemption, there was no reason to reach a different outcome with respect to the analogous PMWA claim. For these reasons, the Court granted Defendant’s motion for summary judgment. Kennett, et al. v. Bayada Home Health Care, Inc., 2021 U.S. App. LEXIS 3541 (10th Cir. Feb. 9, 2021). Plaintiff filed a class action alleging that Defendant failed to provide home health aides with overtime compensation in violation of the Colorado Minimum Wage Order. At issue in this case was a section of the Wage Order providing that “employers need not pay overtime to ‘companions, casual babysitters, and domestic employees employed by households or family members to perform duties in private residences.’” Id. at *1-2. The key dispute was whether the phrase “employed by households or family members to perform duties in private residences” modified only domestic employees or all three occupations listed in the provision. If the modifier only applied to domestic employees, then employers such as Defendant – a third-party providing in-home nursing services to clients – would not have to pay companions overtime compensation regardless of the employer’s status as a third-party. Defendant filed a motion for summary judgment and contended that Plaintiff was exempt from the state’s overtime compensation requirement. Plaintiff filed a cross-motion arguing that the Wage Order exempted only companions directly employed by households. The District Court denied Defendant’s motion and granted Plaintiff’s cross-motion. It held that the Wage Order’s exemption did not apply to Defendant’s home health aides because they were not directly employed by a household or family member. Id. at *4. On appeal, the Tenth Circuit reversed the District Court’s order on the grounds that these issues were already resolved in a recent case entitled Jordan v. Maxim Healthcare Services, Inc. , 930 F.3d 724 (10th Cir. 2020). Defendant offered three primary arguments on appeal, including: (i) the Wage Order was ambiguous; (ii) the District Court should have applied the last-antecedent rule rather than the series-qualifier canon; and (iii) the Colorado Division of Labor’s interpretation of the Wage Order was entitled to deference. Id. at *6. The Tenth Circuit held that the Wage Order was ambiguous because it reasonably could be read as applying to any of the enumerated occupations. The Tenth Circuit concluded that, because it previously held in Jordan that the series-qualifier canon could not be applied to the companionship exemption, it was bound to follow this precedent. With respect to the Colorado Division of Labor’s interpretations, the Tenth Circuit noted that the Division had consistently interpreted the companionship exemption as applying to companions employed by third-party employers. While Plaintiff pointed to a recent rulemaking notice issued by the Division stating that the exemption applied only to companions employed directly by households, the Tenth Circuit held that Plaintiff failed to cite any authority demonstrating that the Division’s interpretations had retroactive effect so as to cover this action filed before the rulemaking notice. Accordingly, the Tenth Circuit reversed the District Court’s order and remanded for proceedings consistent with its opinion. Lozano, et al. v. Bexar County , 2021 U.S. Dist. LEXIS 89298 (W.D. Tex. May 11, 2021). Plaintiff, an Military Services Officer at the Bexar County Military and Veterans Service Center ("VSC"), filed a collective action alleging that Defendant misclassified Military Service Officers as exempt employees and thereby failed to pay them overtime compensation in violation of the FLSA. Defendant asserted the affirmative defense that Plaintiff’s position was within the FLSA’s administrative exemption. After discovery, Defendant moved for summary judgment on its administrative exemption defense, and the Court denied the motion. In support of its motion, Defendant offered declarations from several of its employees, as well as answers to discovery, documents from Plaintiff’s personnel file and the departmental job descriptions and job assignments. Defendant argued that from the evidence, a reasonable jury could conclude that Plaintiff’s positions allowed for and called for him to apply his independent discretion and judgment in formulating advocacy plans for VSC clients that he then submitted as recommendations for supervisory review. Further, Defendant asserted that the evidence showed that Plaintiff exercised supervisory authority over his fellow Military Services Officers. Plaintiff provided his own declaration in