A Kansas Bureau of Investigation (KBI) agent can sue the KBI director for his firing, which was allegedly in retaliation for his refusal to adhere to the director's demand that he work excessive unpaid overtime, the Kansas Supreme Court ruled.
The KBI hired Keith Lumry as a special agent in 2001 and promoted him to senior special agent in 2006. Lumry's initial supervisor was Kelly Ralston. In January 2008, Lumry joined a newly formed Southwest Kansas Drug Task Force and was supervised by Clint Hawkins. Robert Blecha was the director of the KBI throughout Lumry's employment.
KBI policy required the accurate reporting of hours worked on agents' time sheets. However, Lumry claimed that Ralston told him not to record all of his hours on his time sheet due to the many overtime hours he worked each week. Rather, Lumry would negotiate with Ralston every two or three months as to how much overtime he could claim on his time sheets.
[SHRM members-only toolkit: Calculating Overtime Pay in the United States]
In October 2007, Lumry complained to Hawkins regarding uncompensated overtime and said he refused to keep underreporting his hours. Lumry said that he would work an extra five hours per week without additional compensation, but not 10 or 20 hours a week or more of unpaid overtime. Hawkins allegedly replied that Lumry would have to continue to work more than five hours per week of unpaid overtime hours.
In February 2008, Hawkins reviewed Lumry's time sheets after being surprised to learn that Lumry was accruing overtime for a pay period. Hawkins compared Lumry's time sheets to those of other agents and determined that Lumry was claiming time worked when others were not present or when others were not claiming time. In particular, Lumry listed hours for the week of Feb. 11, 2008, for a case which was no longer being worked on by the bureau, and he did not mention this work in a contemporaneous work log.
A subsequent KBI investigation found discrepancies between Lumry's time sheets and his hours worked. Lumry explained that he often worked more hours than he charged the agency. KBI did not determine whether the errors were deliberate falsehoods or just mistakes. Blecha placed Lumry on administrative leave in May 2008 and proposed firing Lumry two weeks later for "knowingly and willfully" falsifying his time sheets.
Lumry complained to the U.S. Department of Labor (DOL) about his uncompensated overtime, and the DOL investigated and ordered the KBI to pay Lumry $20,715 in unpaid wages. The DOL further determined that additional employees, including four other agents, were owed back pay for unpaid overtime. The other KBI employees were not disciplined for submitting inaccurate time sheets.
Lumry brought multiple lawsuits against the KBI claiming that he was retaliated against in violation of the Fair Labor Standards Act (FLSA) for complaining to Hawkins. Lumry first filed in federal court against Ralston, the KBI and the state of Kansas, alleging FLSA retaliation and violation of his constitutional rights. These claims were dismissed based on sovereign immunity grounds and failure to allege that Ralston participated in any unconstitutional acts.
Lumry also filed a lawsuit in state court against Hawkins, Ralston, Blecha and the KBI, claiming retaliatory discharge under the FLSA and in violation of the First Amendment under 42 U.S.C. Section 1983. Lumry later amended the lawsuit to add a claim against the KBI for retaliatory discharge under the Kansas Minimum Wage and Maximum Hours Law (KMWMHL).
The district court granted summary judgment to the defendants on all of Lumry's claims. The court found that neither Hawkins nor Ralston could be considered "employers" under the FLSA and that sovereign immunity barred the claims against the KBI. The court found that Blecha could be held personally liable for FLSA retaliation but the claim nonetheless failed. Because Lumry offered to work some unpaid overtime, he was not able to make a clear complaint that his working overtime violated the FLSA.
Lumry appealed to the court of appeals, which upheld the district court's dismissal of his claims, and then to the Kansas Supreme Court. The Supreme Court reversed and found that a plaintiff who offers to work some uncompensated overtime but refuses to work excessive unpaid overtime is protected by the FLSA and KMWMHL. The court also found that it was too late for Blecha to claim that he was not an employer under the FLSA. The dissent argued that Blecha was protected by sovereign immunity but that the issue had not been addressed by the district court.
Lumry v. State of Kansas, Kan., No. 108,425 (Dec. 16, 2016).
Professional Pointer: Employers that have unusual or noncompliant pay practices are in danger of retaliation claims when an employee questions these practices. This is particularly true for state entities, which are immune from court lawsuits for unpaid wages but are still subject to DOL enforcement actions and whose directors may be sued personally in some circumstances.
Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.
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