How many Assistant Manager overtime cases can there be? There seems to be another one every five minutes. The latest iteration of this phenomenon is a FLSA class action against Burlington Coat Factory. The claim is (again) that the Assistant Managers were misclassified in order to avoid paying them overtime. The case is entitled Payton-Fernandez v. Burlington Stores Inc. et al. and was filed in federal court in the District of New Jersey.
The Complaint asserts that the “defendants’ unlawful conduct, as described above, was willful or in reckless disregard of the applicable wage and hour laws pursuant to defendants’ centralized, companywide policy, pattern and practice of attempting to minimize labor costs by violating the FLSA.” The named plaintiff claims she worked 50-55 hours per week, never received overtime, but spent the bulk of her time stocking shelves, making sales at the cash register, performing janitorial duties and folding/hanging clothes. She claims none of the Assistant Managers could hire or fire or perform any other managerial duties.
This is not Burlington’s first time at the rodeo. The named plaintiff contends that her allegations find ample support in the evidence developed in the 2011 and 2014 class actions that sought overtime on the same basis, for classes of Assistant Managers. Those cases settled for approximately $20 million in 2020, the plaintiff asserts this shows that the Company was fully cognizant that these employees were non-exempt, but still classified them as exempt.
The Plaintiffs clearly want to rely upon the earlier cases. The Complaint asserts that the “defendants’ collective decision to continue to deny [assistant store managers] overtime, after eight years of litigation and a multi-million dollar settlement of identical issues in two prior cases … can only be characterized as an intentional and willful violation.” She wants the class to include all Assistant Managers who worked in excess of forty (40) hours in any week in the last three years. She opines there are hundreds if potential opt-ins to the class.
I sometimes think the easiest and best thing to do is pay all of these titled employees on an hourly basis, pay them overtime or ensure that they do not work more than the magical forty hours in most weeks. Then, all of this unpleasantness could be avoided. Or the employer must enhance the job duties of these employees to show they are actually discharging true management duties, even though they may be stocking shelves.
Then this scenario would be just a memory…