Souryavong v. Lackawanna County — civil — affirmance — Vanaskie

The introduction:

This employee-overtime appeal raises questions as to the nature of the evidence that is sufficient to create a jury question on the purported “willfulness” of an employer’s nonpayment of overtime. The question matters because a finding of willfulness expands the limitations period for claims under the Fair Labor Standards Act (“FLSA”), in effect permitting a plaintiff to receive a larger award. Here only the willfulness question was contested—Appellee Lackawanna County conceded the basic overtime violations—and at trial Appellants Michael Souryavong and Nelson Rolon presented some evidence on the question but not enough to avoid a directed verdict in the County’s favor. We find no error in the District Court’s decision because the evidence presented did not suggest the County was subjectively aware of the FLSA problem at the time of the violations, at least with respect to Souryavong and Rolon. Additionally, Souryavong and Rolon challenge the District Court’s calculation of attorney’s fees, but we find that decision appropriate as well. We will affirm.

On the willfulness issue, the opinion also affirmed for two alternative reasons. First, it said that “an FLSA violation [a willful one, I believe the opinion means] must have a degree of egregiousness” lacking in this case. Second, it said that a “willful violation” requires evidence that the employer knew it was violating the FLSA specifically — awareness of “wage and hour issues” caused by its widespread non-payment of overtime for work over 40 hours and acknowledgement that the employees could file a grievance for back overtime wasn’t enough.

Both alternative rationales, but especially the second, strike me as significant new retreats from the statute’s language.

Joining Vanaskie were Ambro and Restrepo. Arguing counsel were Cynthia Pollick of the Employment Law Firm for the employees and Harry Coleman for the county.