In the Third Circuit, willful FLSA violations are as common as spotting a unicorn sliding down a rainbow into a leprechaun’s pot of gold as pigs fly by.

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If an employer violates the Fair Labor Standards Act, like by not paying overtime, the plaintiff(s) can generally recover two years of unpaid overtime for the two years preceding the lawsuit. Those plaintiffs may also recover liquidated damages equal to the unpaid overtime.

So, if an employer owes $100 in overtime, the total bill with liquidated damages would be $200.

However, if the employer willfully violates the FLSA, then the damages increase. That’s because the lookback period for a willful violation becomes three years.

But, what makes a violation willful? Yesterday, the Third Circuit helped answer that question.

A willful violation is tough to prove.

The case is called Souryavong v. Lackawanna County (opinion here). The employer admitted that it had violated the FLSA by failing to pay overtime. But, claimed it was an accident. What happened was that some employees worked two different jobs, but the employer failed to aggregate the hours.

At trial on the issue of willfulness, the plaintiffs introduced evidence that the defendant understood its overtime obligations under the FLSA. There was also an email with the subject line, “County wage and hour issues.” However, that was not enough to tip the scales in favor of the plaintiffs on the willfulness issue.

So the plaintiffs appealed.

Citing Supreme Court precedent, the Third Circuit noted that “willfulness” includes situations when the employer, at the time of its FLSA violation, either “knew” its conduct was prohibited by the FLSA or “showed reckless disregard for the matter.” Additionally, acting only “unreasonably” is insufficient—some degree of actual awareness is necessary.  Plus, there must be a certain “degree of egregiousness.”

Like Cartman clearing a pole vault.

Here, the facts presented at trial failed to establish any pre-violation awareness of the two-job-FLSA problem, just general knowledge of the FLSA. In contrast, the Third Circuit cited a case in which “a jury question on willfulness is present when a city is well aware of the FLSA’s strictures, sets up a bureaucracy to classify pay and benefits and properly calculate overtime, and then despite all that allows a misclassification of a monthly payment to continue for nine years.”

Like Robin Hood splitting an arrow.

Alternatively, the Third Circuit concluded that “there is a jury question on willfulness if a family fails to pay a nanny a minimum wage, family testimony indicates the family ‘knew’ about minimum wage laws, and the nanny’s testimony was that the family required her to work twice as many hours as the family claimed, did not provide a contract or record her working hours, and instructed her to lie about her employment.”

On the facts of the case before the Third Circuit, even with the email with the suggestive subject line, the Court noted that the defendant fixed the problem within a year, which is better than the nine years it took in the comparator case.

Shocking!

Then the Third Circuit just gilded the lily:

Even if Pearson’s email shows the County was aware of an overtime problem generally at the time of the Souryavong and Rolon violations, it does not indicate an awareness of an FLSA overtime problem specifically. A plaintiff must put forward at least some evidence of the employer’s awareness of a violation of the FLSA overtime mandate….A lack of evidence going to good faith is not the same as evidence in support of intentionality.

So yeah. Basically, willfulness in the Third Circuit is like spotting a unicorn sliding down a rainbow into a leprechaun’s pot of gold as pigs fly by.

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