LCW Attorneys Win Dismissal of Two FLSA Collective Action Lawsuits

Category: Client Update
Date: Oct 3, 2018 03:44 PM

Liebert Cassidy Whitmore attorneys succeeded in decertifying two Fair Labor Standards Act (FLSA) cases brought by approximately 2,500 City of Los Angeles police officers seeking overtime pay for a 13-year period.  This victory means that the City will not incur the tremendous costs that would have been required to proceed to trial on these two collective action lawsuits.

An employer is liable for FLSA overtime worked if the employer has actual or constructive knowledge that FLSA overtime work is occurring.  In this case, the police officers claimed that the City’s Police Department knew or should have known that they were working uncompensated overtime.  The Department argued that it had no knowledge that its officers were not following its overtime policy.

Both sides in these two cases agreed that the Department maintained a written, widely-disseminated FLSA-compliant policy that required officers to accurately report all overtime worked in six minute increments, whether or not the overtime was approved in advance by a supervisor.  The policy further provided that failure to report overtime could result in discipline.  The Department’s evidence showed that it had paid 330,000 reports for overtime worked in amounts of less than one hour during the relevant time period, including 64,000 such reports from the police officers who opted into these lawsuits.   

Nevertheless, the officers claimed that the Department maintained an unwritten policy of requiring them to perform extra work, while discouraging or rejecting their claims for small amounts of overtime pay for less than one hour of overtime worked.  Following extensive discovery and exchange of information between the parties, the federal trial court granted the City’s motion to decertify these FLSA collective actions and dismissed the officers’ claims.  The officers appealed the decertification to the Ninth Circuit.Under the FLSA, multiple employees cannot join together in a collective action unless they are “similarly situated.”  The FLSA does not define the “similarly situated” standard, and the Ninth Circuit decided that the standards other circuit courts used to assess whether employees were similarly situated were vague and not useful.  The Ninth Circuit reasoned that a standard similar to that used for a motion for summary judgment should apply to decertify a collective action if the basis for the collective action is also the basis for the FLSA claim.  In these two collective actions, the basis for the officers’ FLSA claim was also the basis for their claim that they were similarly situated   -- namely, that the Department had an unwritten policy that discouraged the reporting overtime work of less than one hour. 

The volume of evidence presented was significant.  The Ninth Circuit described the Department’s evidence of FLSA compliance as “overwhelming”.  The Department’s evidence included a statistical analysis of the 6.6 million overtime reports that the officers submitted during the 13 years at issue in the case.   The officers’ evidence included 232 declarations describing their individual experiences, but the officers failed to tie their individual experiences to the work force generally.  Only a few of the declarations identified specific instances when officers were discouraged from claiming overtime.   The officers did not present any evidence of any directives, conversations, or emails from Department leadership to supervisors to communicate any policy that contradicted the Department’s well-known policy on reporting all overtime worked in six minute increments.

The Ninth Circuit found that the officers failed to prove that any unwritten policy discouraging overtime reporting existed at a Department-wide level.  The Ninth Circuit decided that no reasonable trier of fact could conclude that the Department fostered or tolerated a tacit policy of non-compliance with the FLSA, given the Department’s overwhelming evidence of compliance with its valid FLSA overtime policy, and dismissed the officers’ two collective lawsuits. 

Campbell v. City of Los Angeles, Case No. 15-56990, 2018 WL 4354379 (9th Cir. Sept. 13, 2018).


LCW attorneys Brian P. Walter, Geoffrey S. Sheldon, David A. Urban, and Danny Y. Yoo successfully represented the City of Los Angeles in this case.  LCW has a very deep bench of exceptional attorneys who know how to handle complex and multi-party litigation or grievances in a cost-effective way.  

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