Double Damages Under The FLSA

The Fair Labor Standards Act (FLSA) is often referred to as a “double damages statute.” Under the FLSA, an employee bringing a successful suit is usually entitled to recover as “liquidated damages” an amount equivalent to the back wages. A recent case involving Records Clerks for the Manchester, Missouri Police Department illustrates how liquidated damages work under the FLSA.

The case began in 2009 when Chief Timothy Walsh decided to move the Record Clerks from City Hall to the Department’s new location. As part of that move, the Record Clerks were to wear a uniform consisting of khaki pants, a blue polo shirt, a small badge, and a Manchester Police Department patch on the shirt. Additionally, the Record Clerks became subject to pre-employment background checks, drug screening, and fingerprinting.

The Chief then issued what was known as Special Order 9.8E, under which the Record Clerks began working 12-hour shifts with four days on duty followed by four days off duty – the same schedule as police officers. Like police officers, the Record Clerks did not receive overtime unless their work schedule exceeded 171 hours in a 28-day period. Prior to the 2009 change, Record Clerks were paid time-and-a-half for work over 40 hours per week.

The Records Clerks eventually sued, and a federal court ruled that as non-sworn employees, they were not covered by the Section 7(k) exemption under the FLSA and thus had to be paid overtime when they worked more than 40 hours in a workweek. The Court calculated the amount of back overtime they were owed, and then turned to whether the Records Clerks were also entitled to liquidated damages.

The Court accepted as a given that “Chief Walsh and the City never intended to violate the FLSA. The violation was a mistake. Chief Walsh believed that the use of the term ‘law enforcement activities’ in Section 7(k) of the FLSA included Record Clerks because of their new responsibilities relating to law enforcement.”

Nonetheless, the Court awarded the Records Clerks liquidated damages. The Court noted that “liquidated damages are not considered punitive, but are intended in part to compensate employees for the delay in payment of wages owed under the FLSA, such delay having possibly resulted in damages too obscure and difficult of proof for estimate other than by liquidated damages. An amount of liquidated damages under § 216(b) is mandatory unless the employer can show good faith and reasonable grounds for believing that it was not in violation of the FLSA.”

In the case of the Chief’s decision, the Court found that the decision to place the Records Clerks on a 12-hour schedule did not meet the FLSA’s reasonableness test: “Chief Walsh did not solicit either advice or an opinion on whether the new schedule order for Record Clerks complied with the FLSA. He is a career police officer who knows the difference between exempt and non-exempt status and knows that police officers are exempt because of their unusual work schedules. He testified that he read the FLSA, although it is unclear what sections of the FLSA he read.

“When testifying, he could not cite to the Court what he had read or how much time he took to research the FLSA or any portion thereof. Based on his testimony that the FLSA exempts employees who engage in law enforcement activities, he may have read § 207(k). He never talked to anyone about his decision except Sergeant West and senior members in the Department. He performed no other independent research, did no internet research, did not talk to an attorney, did not talk to anyone in the Missouri Department of Public Safety, did not use any law enforcement resource, and did not research or talk to anyone in the DOL. The use of any one of those tools may have resulted in Chief Walsh discovering his mistake.

“Chief Walsh testified that the change in duties, hours, and location of Record Clerks was a significant change in Departmental procedure for the City. It would, therefore, have been prudent for the Department head to do some independent research before making these significant changes.”

Adams v. City of Manchester, 2013 WL 3091767 (E.D. Mo. 2013).