Misclassification Results in Liquidated Damages Award

By John Swinney December 13, 2017
Misclassification Results in Liquidated Damages Award

​An employer was ordered to pay liquidated damages where an employee's position was misclassified as overtime-exempt under the Fair Labor Standards Act (FLSA) without good-faith justification, even though the employer had corrected the classification and paid overtime amounts due prior to litigation. The employer also was prohibited from recalculating the overtime amount due when the original overtime calculation was reasonable. Finally, the employer was not liable for retaliation under the False Claims Act (FCA) when an employee could not provide evidence of the employer's knowledge of protected activity.

The Boys and Girls Club of the Pikes Peak Region hired Elizabeth Simmons in 2014 for a position that it initially classified as overtime-exempt under the FLSA. Before any litigation was initiated, the club, on its own, determined that the position was nonexempt and paid Simmons $947 for prior overtime.

In April 2015, Simmons was promoted to branch director—a position classified as overtime-exempt. The position placed Simmons in contact with federal grant documents, which necessitated additional training that Simmons failed to complete.

In December 2015, Simmons' immediate supervisor instructed her to "backdate" a grant document regarding mentoring sessions she did not believe occurred. She refused to do so, believing it was a crime to report the information. Simmons refused a similar request in March 2016. Also in March 2016, the CEO of the Boys and Girls Club learned of her failure to complete the required training and terminated her employment. Although Simmons' immediate supervisor was aware of her refusal to backdate the grant document, he never reported this refusal to the CEO. 

Simmons filed a suit alleging violations of the FLSA and the FCA.

In her FLSA claim, although the club had already compensated her for unpaid overtime during the period that she was misclassified as exempt, Simmons further demanded liquidated damages. She argued that liquidated damages were appropriate due to the employer's failure to show a good-faith reason for the misclassification.

[SHRM members-only toolkit: Calculating Overtime Pay in the United States]

In response, the CEO argued that the amount of unpaid overtime, which it calculated based on timekeeping records submitted by Simmons, should have actually been calculated under the "fluctuating workweek method." The employer maintained that its initial payment overcompensated her for the amount of overtime actually owed and, under the fluctuating workweek method, the $947 previously paid to her would be sufficient to cover both overtime pay and liquidated damages.

The court, however, rejected this. Ultimately, the court held that the initial calculation method was reasonable and that the employer was bound by its original calculation. Notably, the court admonished both parties for disputing the payment of liquidated damages, stating "[a]s an aside, I question the parties' exercise of good judgment in devoting so much time and, presumably, expense to litigation about what at most is a $948 item." Under the FLSA, this favorable award entitled Simmons to recover her attorney fees incurred by bringing her FLSA claim, which is presumably what incentivized her and her attorney to pursue litigation over a relatively nominal amount.

Finally, Simmons brought a somewhat unusual FCA retaliation claim. The FCA prohibits an individual from knowingly presenting a false or fraudulent claim for payment to an officer of the United States. It also prohibits discharging an employee in retaliation for complying with the FCA or preventing a violation of the FCA.

Simmons claimed her employment was terminated in retaliation for her refusal to backdate grant documents, which she believed would violate the FCA. The court explained that to prove a case of FCA retaliation, the plaintiff must show that she participated in protected activity and that the employer knew of the activity and fired her for it. Here, Simmons had only informed her supervisor of the FCA reasons for refusing to backdate the grant information. Simmons was unable to provide evidence establishing that the decision-maker, the CEO, had been informed of those reasons. The court held that mere speculation that he knew or should have had knowledge by virtue of his job title was insufficient to establish liability. 

Simmons v. Boys and Girls Club of the Pikes Peak Region, D. Colo., No. 16-cv-01461 (Oct. 13, 2017).

Professional Pointer: This case is a reminder that employers should be cautious when correcting misclassifications under the FLSA. Employers should be aware that when an original exempt classification lacks a good-faith basis, the employer may still be liable for liquidated damages even if it attempts to fix the misclassification on its own.

John Swinney is an attorney at Franczek Radelet PC, the Worklaw® Network member firm in Chicago.


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