In federal Fair Labor Standards Act ("FLSA") wage and hour cases, court-awarded fees to plaintiffs' attorneys under the FLSA often far outstrip the amount of the employees' claims. A recent federal appellate decision, Dionne v. Floormasters Enterprises, No. 09–15405, 2011 U.S. App. Lexis 15560 (11th Cir. 2011),may offer a way out for employers.  Simply put, the court ruled that an employer could avoid paying attorneys' fees in an FLSA case if, anytime before judgment, it pays the plaintiff or plaintiffs the full amount of the wages claimed, plus an equal amount as liquidated damages.

 

In Dionne,the employee claimed that the company failed to pay him FLSA-required overtime and submitted an affidavit estimating that his unpaid wages were $1,500.  The employer tendered a check for $3,000, the full amount of the wage claim plus an equal amount as liquidated damages, and moved to dismiss the suit. The employer contended that its offer rendered the employee's claim moot and thus deprived the court of jurisdiction.  The trial court granted the motion, dismissed the case with prejudice, and reserved jurisdiction to consider a motion for attorneys' fees and costs.

 

The employee moved for attorneys' fees and costs under the FLSA, which makes fee awards mandatory for prevailing plaintiffs.  The employer countered that the employee was not entitled to attorneys' fees or costs because no judgment had been entered in his favor.  The trial court agreed, and the circuit court affirmed.  According to the court: (1) entry of judgment in favor of the plaintiff is a necessary predicate to an award of attorneys' fees under the FLSA; (2) an FLSA case is rendered moot by payment of the full amount claimed by the plaintiff in back wages plus liquidated damages; (3) dismissal based on mootness is not the equivalent of a judgment in favor of the plaintiff; and, thus, (4) a plaintiff in an FLSA case mooted by full payment of the claim is not entitled to an award of attorneys' fees under the FLSA.

 

            Practice tip: It may make a great deal of sense (as in dollars and cents), as early as possible when you learn of an FLSA wage claim, or get served with a complaint, to investigate the feasibility of paying exactly what the employee claims (especially if you have no records and thus no defense) plus liquidated damages. The wage claim is often but a minute fraction of the cost of litigation and the fee application that the employee's lawyers will submit.

 

Last year, the National Labor Relations Board ("NLRB") issued a number of complaints against employers that enforced social media policies and disciplined employees who posted online comments about the employer. The cases involved both union and non-union employees.  The NLRB's campaign picked up steam earlier this year. In February 2011, for example, the NLRB settled a complaint that had challenged an employer's policy prohibiting employees from depicting the employer "in any way" on social media sites and from making disparaging comments about co-workers or superiors.

 

The 2010-11 cases suggested that the NLRB regarded virtually any employee social media post as protected activity under the National Labor Relations Act.  The wave may be cresting, however. In three recent cases, the NLRB has declined to issue complaints involving discipline of employees for their social networking activity, even though in each case the online comments were job-related.  The NLRB explained that the employee comments were simply personal gripes which did not constitute protected concerted activity, and were thus outside the protection of the Act:

 

·                 In JT's Porch Saloon & Eatery, Ltd., NLRB Case No. 13-CA-046689 (2011),an employee complained online to a relative that he had gone five  years without a raise and commented negatively about his employer's customers.  The NLRB found that the online complaints were never discussed with other employees, nor did other employees respond to the posting; hence, they did not constituted concerted protected activity under the Act.

 

·                 In Martin House, NLRB Case No. 34-CA-012950 (2011),an employee commented during an online conversation with non-employees about her work for a mental health service provider, stating that it was "spooky" working at night in a "mental institution."  The NLRB found that the postings did not mention any terms or conditions of employment, were not discussed with other employees and received no comments or responses from other employees.

 

·                 In Wal-Mart Distribution Center, NLRB Case No. 26-CA-24000 (2011),an employee posted disparaging comments about his manager and about Wal-Mart itself on his Facebook page.  Although two co-workers responded to his posting, the NLRB concluded that the comments merely expressed the employees' "individual gripes" and did not constitute an effort to induce employees to engage in group action.

 

 

 

·                 When you see or hear of an inappropriate online employee post about the workplace, check to see whether the employee is acting alone or whether employees are talking to each other in the posting;

 

·                 Look to see whether the employee is merely venting or expressing individual gripes, which may not be protected, and thus permit disciplinary action; and

 

·                 Determine whether the employee is making inappropriate comments about your clients or customers, which is not protected activity, and is thus a basis for discipline.