In April of last year, our unpaid overtime lawfirm, Brady & Associates, filed a lawsuit in the U.S. District Court on behalf of workers Paz Sanchez and Elvis Posadas against Creekstone Farms Premium Beef. Ms. Sanchez and Mr. Posadas were designated the representative plaintiffs for this potential class action suit. The plaintiffs seek to recover unpaid wages and overtime, as well as legal costs.
The Fair Labor Standards Act (FLSA) 29 U.S.C. § 216(b) provides the following for a cause of action:
Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.
The practice at issue is that of "gang time." Creekstone Farms typically pays workers based on the time they are assigned to production lines, plus an extra ten minutes to get into the necessary protective gear for a meat-processing plant. Ms. Sanchez and Mr. Posadas contend that they, along with hundreds of other production employees of Creekstone, routinely spent far more than 10 minutes per day engaged in various work-related activities concerning protective gear and equipment during unpaid pre-shift, post-shift, and meal break times.
As our own Mark Kistler told the Associated Press, "the failure of an employer of food processing employees to pay the employees for all their compensable time is a common occurrence.... It seems the employers have an attitude of 'catch me if you can.'"
Our firm has achieved two victories since this lawsuit began. The first victory was in achieving a protective order against Creekstone when they made a discovery request for documents pertaining to the immigration status of our plaintiffs. We argued that courts have disallowed such requests under FLSA due to the "damage and prejudice" that would occur if discovery into immigration status was allowed. Magistrate Judge Gale agreed with us. As explained by the numerous federal judges who have made similar rulings, allowing such discovery would create the perverse incentive for an employer to violate both immigration and labor laws--the employer could hire undocumented workers with a wink and a nod, violate labor laws such as minimum wage and overtime statutes, then scare off workers from asserting their minimum wage and overtime rights with the threat of immigration-related discovery requests.
Our next victory was the conditional certification of our class this past February. Under federal law, the Fair Labor Standards Act provides to employees minimum wage and overtime rights. Section 216(b) of the FLSA allows for a "collective action" whereby "similarly situated" employees can opt into the case along with the original plaintiffs. We sought to have this suit certified as an FLSA class action on behalf of approximately 700 employees. Ms. Sanchez and Mr. Posadas were just two of many employees "similarly situated," i.e., all such employees were injured in the same way by the "gang time" practices of Creekstone. District Court Judge Melgren granted our motion for conditional certification.
Currently pending is our motion for class certification of related state-law claims for Creekstone's violations of the Kansas Wage Payment Act. That motion has profound implications for the case because if it is granted, members of the class of the hundreds of affected "gang time" employees will be entitled to participate in the success of the case unless they affirmatively opt out of participating.
Workers file lawsuit against Creekstone Farms, by the Associated Press, published at CJOnline.com.
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