Cleveland County EMS overtime pay dispute could affect 100 current, former workers

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  • A federal judge is allowing a Cleveland County Emergency Medical Services worker to proceed with a potential class-action lawsuit dealing with overtime pay.
  • The 4th U.S. Circuit Court of Appeals revived the case in 2022. Appellate judges ruled plaintiff Sara Conner had made a case that could proceed under the Fair Labor Standards Act.
  • The case attracted national attention when Cleveland County appealed to the U.S. Supreme Court. Sixteen states supported the appeal. Critics objected to the 4th Circuit's approach to a legal standard called "Skidmore deference."

A federal judge will allow a Cleveland County Emergency Medical Services worker to continue her push for class-action status in her pay dispute with county government. If successful, more than 100 current and former employees could collect back pay.

U.S. Chief District Judge Martin Reidinger filed an order Monday allowing Sara Conner to proceed with a potential class action lawsuit. Reidinger denied Cleveland County’s motion to dismiss the case.

Among the factors contributing to the judge’s decision was the number of employees who could be affected. “[B]ased on the Plaintiff’s estimations, the class would exceed 100 members,” Reidinger wrote.

Conner and the county will file additional paperwork within the next month. Then Reidinger will decide how Conner’s lawyer can proceed to contact members of the class. It would consist of county employees who had a regular 21-day repeating schedule of 24 consecutive hours of work, followed by 48 hours off work, between 2015 and 2017.

The suit filed in 2018 contends that Cleveland County violated federal law and breached its contracts with those employees by failing to pay them correctly for overtime work.

In weeks when Conner worked overtime, the county EMS reduced her regular rate of pay, she argued. The pay structure created “overtime gap time.” Conner is suing to recover lost wages.

The trial court initially ruled in favor of the county in August 2019. But the 4th U.S. Circuit Court of Appeals revived the case in January 2022. Appellate judges ruled that Conner had made a claim connected to the federal Fair Labor Standards Act that could move forward.

Reidinger signaled that he still has doubts about Conner’s prospects for winning her case.

“Ordinarily, the existence and terms of a contract would be questions of law for the Court,” he wrote. “The Plaintiff asserts that the relevant contract of the parties between 2015 and 2017 is embodied entirely in the [county’s] Ordinances” and was applied correctly only as of Jan. 1, 2018.

“The Plaintiff’s allegations as to both the existence of such contract and its proper
interpretation are very thin,” Reidinger wrote. “On this record the Court can make no
conclusions as to either. However, applying the ‘fairly lenient’ standard at this early stage, particularly considering the direction of the Court of Appeals to determine whether the Plaintiff and the putative class of ‘employees are paid all of their straight time wages first under the relevant employment agreement,’ the Court will not dismiss the matter due to the meager plausibility of the Plaintiff’s allegations. Such questions are best left for summary judgment, or if appropriate, for the jury.”

The case had attracted national attention. Cleveland County appealed the 4th Circuit’s 2022 ruling to the U.S. 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 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 U.S. 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 U.S. 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.”

The U.S. Department of Labor believes “unpaid gap time” violates the Fair Labor Standards Act. The 4th Circuit granted the department “considerable deference,” without analyzing the law or making any kind of finding about whether the department’s interpretation proved persuasive.

But a 2013 case from the 2nd Circuit came to an opposite conclusion. Appellate judges in that dispute considered similar facts and found the Labor Department’s interpretation unpersuasive.

Now that the U.S. Supreme Court has rejected the Conner case, the 2nd and 4th federal circuits will maintain contrasting approaches to the Skidmore precedent.