A security guard who alleged his employer cut his pay to limit its overtime costs will get a second chance at his wage and hour claim, the 11th U.S. Circuit Court of Appeals concluded Thursday in Thompson v. Regions Security Services, Inc.
The Regions Security employee earned $13 per hour and typically worked a 40-hour workweek, according to court documents. Eventually, however, the employer started scheduling him for about 60 hours each week. For a while, he continued to earn $13 per hour as his regular rate, plus time-and-one-half for the new overtime hours. Seven months later, it reduced his regular rate to $11.15, he claimed, and began scheduling him for even more hours, between 55 and 75 per week.
After about a year, the company cut the guard’s hours back down to 40 per week and returned his regular rate to $13. He sued, alleging Regions had artificially reduced his regular rate to limit its overtime costs, in violation of the Fair Labor Standards Act.
A lower court dismissed the claim but on appeal, the 11th Circuit said the employee had “plausibly alleged that Regional Security used prohibited arithmetic.” It vacated the lower court’s order and sent the case back for reconsideration.
The FLSA generally requires that employers pay time-and-one-half a nonexempt employee’s regular rate for all hours worked beyond 40 in a workweek. And while the law allows employers to change workers’ regular rates, they cannot do so to circumvent the FLSA’s overtime mandates, the court said.
Regional Security may well have had a permissible reason for reducing the plaintiff’s pay, the court said. The fact that the guard’s pay remained the same for seven months after he started working overtime could show that the employer wasn’t aiming for an FLSA-workaround. “But it could alternatively suggest that Regional Security tried to camouflage the fact that it was attempting to circumvent the FLSA when it began effectively paying Thompson roughly $13.00 for every hour — regular and overtime — that he worked during the year or so that followed that seven-month period,” the court said.
Because of that, the worker’s evidence was strong enough to avoid dismissal, the court concluded, reviving the lawsuit.