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March 21, 2011
Did Employer Know He Worked Overtime?

A Florida janitor sued his former employer for unpaid overtime, but the employer argued that (a) the overtime wasn’t covered by the Fair Labor Standards Act (FLSA) and (b) it didn’t know he was working overtime, because he never told management. For the time being, both those arguments failed.

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What happened. “Gomez” worked for Priority Care Service, which provided cleaning services for three fitness centers in Hillsborough County. He was responsible for cleaning bathrooms and locker rooms in all the facilities every night between midnight and 5 a.m. At some point in his tenure, he complained to his supervisor that he was working more than 40 hours a week, including his drive time among the locations. His boss told Gomez to provide him with time sheets, which Gomez apparently did. What happened to those time sheets is an open question.

In a federal district court, Priority Care first argued that it is not covered by FLSA, because neither it as an enterprise nor Gomez as an individual engaged in commerce or in the production of goods for commerce. In simple terms, the employer said, “We're just a local cleaning company.” Gomez countered that as an employee, he used a variety of cleaning products produced in Wisconsin and Ohio. That meant, he said, that he dealt with “goods or materials that have been moved in or produced for commerce.” Further, he argued, Priority Care met the threshold of an annual gross sales volume of at least $500,000—a fact that Priority Care did not dispute.

Next, the employer asserted that Gomez had never complained to upper management that he was working overtime, so management didn’t know and shouldn’t have known about that problem. But he did maintain that he had complained to his immediate supervisor. No one knew where the time sheets were, and Priority Care countered that the supervisor had never passed along the complaints.

What the court said. Based on its two arguments, the employer asked the judge to issue summary judgment—legalese for dismissing Gomez’s suit. But she found that there were genuine issues of fact: Was Gomez covered by FLSA? Did he complain to his supervisor, and what happened after that? Such questions, she ruled, must be presented to a jury, so she scheduled a pretrial conference to make that happen. Pareja v. Priority Care Service, U.S. District Court for the Middle District of Florida, No. 8:10-cv-302-T-24TGW (1/4/11).

Point to remember: Most courts would probably find that all Priority Care janitorial employees are nonexempt under FLSA. If that’s the case, they should all complete and submit weekly, signed time sheets. It’s risky for an employer to simply estimate hours worked.

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