On July 8, 2016, Joshua D. Buck of Thierman Buck urged the Court of Appeals for the Ninth Circuit to reverse a Nevada District Court Judge’s decision that held overtime compensation is not “wages” under Nevada law.
A former Wal-Mart employee on Friday urged the Ninth Circuit to revive her putative class action alleging the retail giant fails to compensate workers leaving the company for overtime they worked during their employment, arguing Nevada law clearly intends overtime to be included in final wage calculations.
During oral arguments in San Francisco, Joshua Buck of Thierman Buck Law Firm PC urged a three-judge panel to reverse U.S. District Judge James C. Mahan’s decision tossing Charde Evans’ suit alleging WalMart failed to include overtime pay she earned for instances when she worked two eight-hour shifts in quick succession when calculating the final wages due her when she left the company in June 2010.
Buck argued that the Nevada laws that require companies to continue paying former employees until they receive their final wages clearly are meant to include overtime pay in the “wages or compensation” discussed in the statutes. Buck said that Judge Mahan’s finding that the continuation wages statute only covers contractually agreed-upon pay “simply is not correct when looking at the entire statutory scheme.”
“Even if wages are only something contractually owed, which we dispute, it’s nonetheless compensation,” he said. “That specific term compensation is used in the overtime statute itself … [A)cceptlng the district court’s reasoning would render [the continuation wage] statute a nullity.”
Evans’ July 2010 complaint alleged that Wal-Mart managers often scheduled her shifts less than 16 hours apart – called “shift jamming” – meaning she sometimes worked more than eight hours in a day or 40 hours in a week, without paying her the required overtime rate. Evans had sought to represent a class of Wal-Mart employees in Nevada.
Evans’ managers altered her scheduling after she complained but still refused to pay her for past overtime, the complaint said. Evans also included a claim under Nevada laws that require companies to pay employees their final wages within seven days after they resign or are terminated. These laws require employers to continue paying those workers their normal wages for up to 30 days, or until the final wages are issued.
Shortly after Evans filed her complaint, Wal-Mart settled her claim over the “shift jamming” practice with the Nevada Labor Commissioner, but her claim for so-called continuation wages survived, according to the appellate briefing.
In January 2014, Judge Mahan dismissed the suit, granting Wal-Mart’s motion for summary judgment on that remaining claim, ruling that statutorily required overtime pay is not “wages” as defined by the continuation wages statutes, as only pay guaranteed by an agreement between an employer and employee is covered by those laws, according to the appellate briefing.
On Friday, Karin L. Bohmholdt of Greenberg Traurig LLP, representing Wal-Mart, urged the appellate panel to affirm that decision, arguing it is “offensive, but more importantly, not within Nevada law,” for a plaintiff to bring a suit for statutory penalties against an employer for not accounting for “some missed overtime” when paying continuation wages, especially when that employer voluntarily settled the overtime claim.
Bohrnholdt argued that Wal-Mart’s settlement with the state labor commissioner cleared it of all liability for the “shift jamming” unpaid overtime claim, which necessarily includes the derivative continuation wages claim.
“The labor commissioner is charged with enforcement of all those statutes, including [the continuation wage statutes],” she said. “If the labor commissioner did not qualify which penalties he was referring to, there is no other way to read ‘without further fines or penalty,’ other than to include all the fines and penalties this commissioner is permitted to and charged with enforcing.”
The panel took the matter under submission.
Circuit Judges Barry Silverman and Jacqueline Nguyen sat on the panel that heard Friday’s arguments with U.S. District Judge Micahel Anello sitting by designation.
Evans is represented by Mark R. Thierman, Joshua D. Buck and Leah L. Jones of Thierman Law Firm PC.
Wal-Mart Is represented by Mark E. Ferrario, Eric W. Swanis, Brian L. Duffy, Naomi G. Beer and Karin L. Bohmholdt of Greenberg Traurig LLP.
The case is Charde Evans v. Wal-Mart Stores Inc., case number 14-16566, in the U.S. Court of Appeals for the Ninth Circuit.
–Editing by Jack Karp.
Case file: Walmart adv. Evans