Judge rules Cleveland workers will get no extra money in overtime pay dispute

Nine Cleveland County employees will get no extra pay from a lawsuit focusing on “overtime gap time.” A federal judge issued an order Monday rejecting the workers’ claims for back pay in a dispute that started in 2018.

Lead plaintiff Sara Conner filed the initial complaint. An employee of Cleveland County Emergency Medical Services, Conner argued that the county violated federal law and breached its contracts with employees by failing to pay them correctly when they worked both regular and overtime hours.

Conner alleged violations of the federal Fair Labor Standards Act and the state Wage and Hour Act.

Fifteen other Cleveland County employees eventually joined Conner’s suit, though seven later dropped out of the litigation.

“[T]he Court has been able to discern from the pay records submitted that each of the Plaintiffs was paid the total amount of base pay that was owed,” US Chief District Judge Martin Reidinger wrote Monday in a 24-page court order. “Even though over the course of a year the Plaintiffs were routinely shorted in their base pay during the four pay periods comprised of three work weeks, the Plaintiffs were overpaid during the other twenty pay periods, which made up the difference — usually in advance.”

“As such, even though the Court concludes that there is a technical violation of the FLSA by the Defendant’s Section 14 Pay Plan arrangement, the Plaintiffs have no resulting overtime gap time claim losses,” Reidinger added. “As a result, the Plaintiffs shall recover nothing by way of this action.”

The trial court initially ruled in favor of the county in August 2019. But the 4th US Circuit Court of Appeals revived the case in January 2022. Appellate judges ruled that Conner had made a claim under FLSA that could move forward.

The case had attracted national attention. Cleveland County appealed the 4th Circuit’s 2022 ruling to the US Supreme Court. Sixteen state governments filed a brief supporting the county’s request. So did groups called the International Municipal Lawyers Association and the New Civil Liberties Alliance.

The high court decided in December 2022 not to take the case.

Critics argued that 4th Circuit judges had misused a legal doctrine known as “Skidmore deference.”

“It’s a concept so often repeated that it may strike as a truism: When construing a statute, a court must start with the text,” opened a friend-of-the-court brief at the Supreme Court from West Virginia Attorney General Patrick Morrisey. “But courts still sometimes can’t resist the temptation to ignore the words on the page to reach desired ends.”

“[T]he decision below is one more example of that mistaken indulgence,” Morrisey argued. “The Court should use this case to remind all courts that the tried-and-true lesson of statutory construction still holds. Text reigns.”

Morrisey critiqued the 4th Circuit’s “overreliance” on deference to the US Department of Labor’s interpretation of federal law. Judges reached “a result that the text of the Fair Labor Standards Act cannot sustain,” he wrote.

“The court below recognized that the Act does not ‘include language’ permitting employees to recover for ‘overtime gap time,’” according to the brief.  “Yet the court marched ahead anyway — repeatedly relying on its own conception of the FLSA’s ‘purpose’ to fashion a new remedy without a statutory hook.”

“Perhaps worse still, the Court further applied something approaching blind deference to the Department of Labor’s spin on the statute even while recognizing that the ‘only other circuit’ to ‘squarely address’ this question gave no deference to that regulation precisely because it found ‘no statutory support,’” Morrisey added.

Attorneys general from Alabama, Alaska, Arkansas, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Oklahoma, South Carolina, Texas, and Utah signed onto the West Virginia brief.

The New Civil Liberties Alliance also criticized the 4th Circuit’s approach.

“NCLA is particularly disturbed by the Fourth Circuit’s decision to grant ‘considerable deference’ to the U.S. Department of Labor’s non-binding interpretation of the Fair Labor Standards Act without undertaking the basic step of determining whether that interpretation is consistent with the statutory language,” NCLA attorneys wrote. “The Fourth Circuit exhibited an all-too-frequent tendency among lower courts ‘to defer to the interpretive views of executive agencies, not as a matter of last resort but first.’”

“Skidmore deference” refers to a court precedent from 1944.

“The shorthand ‘Skidmore deference’ is somewhat of a misnomer because Skidmore v. Swift and Co. does not allow a court to truly defer, i.e., subordinate its independent judgment, to an agency’s non-binding interpretation of law,” the NCLA brief argued. “Rather, non-binding interpretations ‘are “entitled to respect” [under Skidmore], but only to the extent that they are persuasive.’”

The Supreme Court “unfailingly” subjects Skidmore cases to judicial analysis, NCLA asserted.

“Lower courts do not uniformly apply Skidmore in this manner,” according to the brief. “Some follow this Court’s independent judgment approach and accept only non-binding agency interpretations that they deem persuasive. Many others, however, subordinate their own judicial judgment in favor of agencies’ views based on the mistaken belief that Skidmore commands deference rather than respect.”

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