The Ninth Circuit decision on the hearing held July 8, 2016, clearly states overtime pay is a form of wages and that Nevada law waiting time penalties can be accessed on a failure to pay overtime. This is a significant victory for employees who are forced to take their employers to court when the employer fails to properly pay regular and overtime wages to its employees.
By Cara Bayles
Law360, San Francisco (August 16, 2016, 4:41 PM ET) — The Ninth Circuit on Monday ruled that Wal-Mart must pay a former employee penalties for its delay in compensating her for double shifts, reversing a lower court’s decision that such “waiting time” fees can only be applied to “contractual wages” and not state-mandated overtime.
In a three-page decision, the Ninth Circuit found that a Nevada federal court erred in granting Wal-Mart Stores Inc. summary judgment on former cashier Charde Evans’ claims that the retailer still owed her waiting-time penalties for the overtime it only paid after settling claims with the state’s labor commissioner.
“The labor commissioner’s order does not reference waiting time penalties, and therefore does not dispose of Evans’ waiting time penalty claims. We conclude that overtime pay is a form of wages under Nevada law,” the court said. “Wal-Mart conceded at oral argument that Evans was employed pursuant to an oral contract of employment, so Evans is also entitled to seek waiting time penalties.”
Though the decision was unpublished, Evans’ attorney, Mark Russell Thierman, said the decision could set a precedent for how Nevada courts deal with labor disputes.
“We’ve had a controversy raging here in federal courts about whether there’s a private cause of action for wages or whether only the labor commissioner can seek them,” he said. “We’re really pleased both on this case and what it can mean for many others that have been bottlenecked.”
Wal-Mart spokesman Randy Hargrove told Law360, “We believe we have met all of our payment obligations under the settlement and are looking into our options.”
Evans’ original case was a putative class action alleging Wal-Mart failed to include overtime pay she earned for working two eight-hour shifts in quick succession when it calculated her final wages after she left the company in June 2010. Wal-Mart settled her claim over the “shift jamming” practice with the Nevada Labor Commissioner soon after she brought the case, but she pursued her claim for continuation wages, state-mandated pay that companies owe former employees until they receive their final paychecks.
In addition to remanding those claims to the lower court, the Ninth Circuit denied Evans’ motion for judicial notice on the Nevada law, which Thierman said would have proved that wages don’t only fall under the purview of the labor commissioner by tracing the law back to its origins.
But he wasn’t concerned about the dismissal, saying, “It’s fine. We won. We don’t need it.”
Circuit Judges Barry Silverman and Jacqueline Nguyen and U.S. District Judge Michael Anello decided the case.
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 Philip Shea.