On September 25, the parties made oral argument to Judge Lipscomb on the remaining issues. Some of his rulings were given orally at the time of argument, and the rest came in two different stages with the final, most important ruling being made on the 13th of October. Only one issue remains which will be briefed and argued over the next several months, which is whether pre-judgment interest is owed to the Plaintiffs. Given the Court’s ruling to date, Plaintiffs do not anticipate prevailing on that issue, but anticipate filing an appeal over it. The rulings on the issues are as follows:
The statute read literally requires time and one half for all hours worked over 40 in a week. Plaintiffs argued that the statute must be read literally. However, the defendant argued that the Court could use an FLSA method of “half time” compensation. The theory behind this method of compensation is that all Plaintiffs were already paid for their “straight time hours” no matter how many, and therefore, were only owed “half time.” Because the statute had never been interpreted by an Appellate Court, Judge Lipscomb was free to utilize whatever method he thought was appropriate, and he ruled that the half time method was appropriate since he didn’t believe this case should ever have been resolved in the Plaintiffs’ favor. Plaintiffs are appealing this ruling to the Court of Appeals. See an explanation under Frequently Asked Questions on this Website for further details about how damages are computed, as it is not truly a “half time” of your regular rate of pay.
State statute provides that if an employer does not provide a final paycheck when the employee terminates, the employer is liable for eight hours of pay a day until the employer provides the right check, up to 30 days penalty. Judge Lipscomb ruled that the State owes penalty pay to those employees who terminated after January 27, 2000, which is the date that the Appellate Court “mandate,” or order, from the Appellate Courts came down to the Circuit Court, thereby precluding any more Appellate Court involvement as to liability in this case. Plaintiffs believe this is in error and are appealing this issue, arguing that all terminated employees are entitled to penalty pay. Defendant may cross appeal this issue, arguing that no one is. If that occurs, penalty pay will not be paid until the appeals are exhausted.
The State claimed that if it owed time and a half, then it was entitled to an offset for every week when an employee did not work 40 hours and did not use paid time to bring the employee’s usage up to 40 hours, i.e., holiday pay, vacation pay, or compensatory time pay. The Court rejected this argument, and defendants are cross appealing this issue.
Plaintiffs argued that consistent with the FLSA and BOLI regulations, that if employees did not get a 30 uninterrupted meal period, then all time must be counted as hours worked. The Court rejected this and adopted the State’s theory that any time which was not hours worked will not count. While Plaintiffs believe this ruling could be overturned on appeal, Plaintiffs have decided not to pursue an appeal on this issue. See the Frequently Asked Questions, which goes into this with more detail.
Defendant asked for more time to brief this issue and the Court granted it. Plaintiffs are pessimistic that they will prevail without an appeal in this area, based on other rulings to date.
Today the number one question is when will the OSRL questionnaire be mailed out? Both sides are working on getting an answer from OSRL and hope to have it soon. As soon as we know, it will be posted on this Web Site.
Sincerely,
/S/
The Law Office of John Hoag, P.C.
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