Wage & Hour Defense Blog : Wage & Hour Lawyer & Attorney : Epstein Becker Green Law Firm : DOL Enforcement, FLSA Coverage

According to a federal judge in California, the answer is "Yes."  Judge Wilken of the U.S. District Court for the Northern District of California issued a summary judgment ruling on October 16, 2009 holding that temporary employees of Kelly Services were owed overtime for time spent in interviews for job placement.  The rationale for the decision included findings that Kelly arranged the interviews, helped the applicants prepare for the interviews, and debriefed them afterwards.  The judge rejected Kelly's arguments that the interviews were purely voluntary, and for the benefit of the applicants (since they presumably wanted a job), and found that the interviews were "controlled" by Kelly.   The Judge did throw a bone to the temp agency by declaring that time spent traveling to interviews was not compensable. 

This case will no doubt be relied upon as a basis for class actions against temporary staffing companies around the country.  Any employer in this industry should be aware of this ruling and take a hard look at its policies to alleviate arguments of "control" over job interviews.  In the meantime, one can only hope that the appellate court will apply a bit more common sense. 

A conflict is brewing in the federal courts over whether a defendant's offer to settle a collective action FLSA case for full relief can moot the case and effectively deprive the court of jurisdiction.  Plaintiff's lawyers view this tactic as a trick aimed at "picking off" class members to avoid a larger suit, while defendants argue that the courts should not be used to stir up litigation once a party's claim has been fully satisfied.  Put simply, why continue a lawsuit once the plaintiff has won everything he or she could collect?

In a recent decision out of North Carolina, a federal judge has waded into this mix by dismissing an overtime case filed against United Mortgage.  The defense counsel sent the attached letter to the plaintiffs' counsel offering to not only fully compensate the named plaintiffs, but to pay any claims submitted with an accompanying affidavit explaining the details of any alleged unpaid work.  The plaintiffs declined the offer and the judge dismissed the case.

The plaintiffs have appealed to the Fourth Circuit, which will no doubt lead to an important appellate decision affecting all FLSA collective actions.  The last time a circuit court weighed in on this issue, the Fifth Circuit held that offers of judgment did not deprive a court of jurisdiction except in very limited circumstances, and greatly limited the use of the technique in obtaining dismissal.  Hopefully, common sense will carry the day and those who would reject a win in favor of running up attorneys fees won't be rewarded.