Third Circuit Clarifies What Constitutes a Willful Violation of the FLSA
September 26, 2017
by Adam R. Long
The federal Fair Labor Standards Act (FLSA) establishes requirements for minimum wages and overtime pay. The FLSA’s requirements can be complex, and employers can face significant liability for unpaid wages and liquidated damages by failing to ensure compliance with its myriad requirements.
The FLSA contains a somewhat unique quirk regarding its statute of limitations. The statute of limitations for FLSA violations is two years. However, if the plaintiff(s) can show that the violation was willful, the statute of limitations is extended to three years. In other words, employees who commit willful violations face a potential additional year of damages (if the unpaid wages date back at least three years before the filing of the lawsuit).
In an FLSA case filed against Lackawanna County, the Third Circuit recently clarified what constitutes a willful violation to trigger the third year of liability under the FLSA. In Souryavong v. Lackawanna County , the County failed to aggregate the hours worked by part-time employees who worked multiple jobs for the County. For overtime pay purposes, all hours worked by a non-exempt employee for an employer must be recorded and counted. If the total hours worked in any workweek exceeds 40, the employee is entitled to overtime pay, regardless of whether the hours were worked in one or multiple positions for the same employer.
Thus, it was undisputed that the County violated the FLSA by failing to aggregate weekly the hours worked for these part-time employees. It also was undisputed that the County was liable for unpaid overtime pay and liquidated damages dating back two years from the date the lawsuit was filed. What was in dispute was whether the County’s violation was willful, which would trigger a third year of damages.
The plaintiffs claimed that the violation was willful and pointed to testimony by the County’s chief financial officer and HR director that the County had been generally aware of its FLSA obligations since 2007. The plaintiffs also identified an e-mail from the HR director to two other County officials regarding “wage and hour issues.”
The Third Circuit rejected the plaintiff’s willfulness argument. Specifically, the Third Circuit found that the evidence did not establish that the County was aware of the specific overtime pay issue (i.e., aggregating hours worked by part-time employees who worked multiple jobs for the County) before or at the time that the FLSA violations occurred. General awareness of the FLSA’s existence and its general requirements is not enough to prove a willful (i.e., intentional) violation of one of its specific requirements.
There are two important takeaways from the Third Circuit’s Souryavong decision:
- To prove a willful FLSA violation and get that third year of potential damages, employees will need to prove that the employer actually knew of the specific FLSA requirement at issue at the time of the violation and intentionally did not comply with it. General FLSA awareness is not sufficient to prove a willful violation of a specific requirements.
- Employers should keep this decision in perspective and understand what it means and what it does not. Even with the Third Circuit’s favorable decision, the County still was liable for two years of unpaid wages for multiple employees, an equal amount in liquidated damages, an additional $56,000 for the plaintiffs’ attorneys’ fees, and an additional undisclosed amount for its own attorneys’ fees. FLSA violations present significant potential liability for employers, and it is in every employer’s interest to audit its pay practices and ensure compliance before a lawsuit is filed or a Department of Labor investigation begins. While this decision confirms that it can be hard to establish a willful violation, employees need to prove only a violation of the FLSA (regardless of whether the violation was intentional) to get two years of damages plus their attorneys’ fees paid by the employer.