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September 14, 2021
11th Circuit: Doesn’t Take Much Interstate Commerce to Trigger FLSA Coverage

By Jeff Slanker

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The U.S. 11th Circuit Court of Appeals (which has appellate jurisdiction over federal trial courts in Florida, Georgia, and Alabama) recently issued an important decision about when an employee is covered by the Fair Labor Standards Act (FLSA). Specifically, the court looked at whether the Act protects an employee who makes three to five phone calls per week to out-of-state customers and vendors.

Background

The FLSA is a federal wage and hour statute that sets various requirements for how employers must pay employees. Most notably, the law requires you to pay employees at least the minimum wage for each hour worked and overtime pay of 1.5 times their normal hourly rate for any hours worked over 40 in a workweek.

Whether the FLSA covers the employer or the employee’s employment generally can be established either on an employer-wide basis or a per-employee basis. Both coverage standards require either the employer or the employee to be engaged in interstate commerce.

Facts

All County Environmental Services, Inc., a pest control business, had only one location in south Florida, where Wendy St. Elien worked as an administrative assistant. She filed suit alleging the company failed to pay her overtime. To prove she was covered under the FLSA’s “individual coverage” standard, she had to show she engaged in interstate commerce in her employment.

St. Elien made between three and five phone calls per week to out-of-state customers and vendors. Specifically, she called out-of-state customers who had homes in Florida for permission to access their properties in the state for pest control services. She called the out-of-state vendors to discuss billing and payment on items purchased from their local stores.

The 11th Circuit examined the FLSA’s text and found the term “commerce” does indeed include out-of-state communication. Therefore, St. Elien was engaged in commerce as the term is used in the law, and her employment was covered by the Act. Wendy St. Elien v. All County Environmental Services, Inc., et al. (Case No. 20-11619, March 18, 2021).

Takeaway

The 11th Circuit’s ruling shows the FLSA can be read broadly to cover different types of employees. You should be extremely cautious in determining employee coverage under the Act. Consider consulting with legal counsel before deciding whether an employee is covered and thus entitled to its protections including overtime pay.

Jeff Slanker is a shareholder at Sniffen and Spellman, PA, a law firm with offices in Tallahassee, West Palm Beach, and Pensacola, Florida. Slanker’s labor and employment law focus is on representing employers and management in federal, state, and administrative litigation. He has defended employers in discrimination, retaliation, wage and hour, labor relations, employee benefits and harassment matters. He is located in the firm’s Tallahassee office and can be reached at 850-205-1996 or jslanker@sniffenlaw.com.

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