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Biggio v. H2O Hair Inc.

United States District Court, E.D. Louisiana

June 8, 2017

CARRIE BIGGIO, ET AL.
v.
H2O HAIR INC., ET AL.

         SECTION "B"(2)

          ORDER AND REASONS

         Before the Court is “Plaintiffs' Motion for Partial Summary Judgment.” Rec. Doc. 146. Defendants timely filed an opposition memorandum. Rec. Doc. 157. Plaintiffs then requested (Rec. Doc. 161), and were granted (Rec. Doc. 168), leave to file a reply memorandum (Rec. Doc. 169). For the reasons discussed below, IT IS ORDERED that Plaintiffs' motion for partial summary judgment (Rec. Doc. 146) is DENIED.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         As this Court has previously discussed, on November 18, 2015, Plaintiffs Carrie Biggio and Chelsea Luminais (collectively “Plaintiffs”), filed the present action under the Fair Labor Standards Act (“FLSA”) against their former employer, asserting claims individually and on behalf of all those similarly situated. Rec. Doc. 1 at 1-2. Plaintiffs worked full-time at Defendant H2O Hair, Inc. (“H2O”) under numerous job titles, including, but not limited to: apprentice, stylist, masseuse, blow-dry bar attendant, receptionist, assistant, and housekeeper. Id. at 2. Named as Defendants in the action are H2O, Michael John Gaspard (“Mr. Gaspard”), [1] Holli M. Gaspard (“Ms. Gaspard”), [2] and XYZ Insurance Company.[3] Id.; see also Rec. Doc. 45 at ¶¶ 5-7. Plaintiffs asserted a number of claims against Defendants, including: (1) failure to pay minimum wage and overtime as mandated by the FLSA; (2) retaliation against Plaintiffs and those similarly situated who requested proper wages under the FLSA; (3) conversion and misappropriation; (4) unjust enrichment; and (5) failure to pay overdue wages following termination, as required by Louisiana law. Rec. Doc. 1 at 3-6. Plaintiffs sought unpaid back wages, liquidated damages, punitive damages, costs, and attorney's fees, among other forms of relief applicable under Louisiana and federal law. Id. at 6-7.

         Soon after filing the complaint, Plaintiffs filed a motion to conditionally certify the class. Rec. Doc. 27. On March 14, 2016, the motion was granted in part to allow conditional certification. Rec. Doc. 44 at 15. The class now consists of thirteen former employees. Rec. Doc. 146-1 at 1.[4]

         II. THE PARTIES' CONTENTIONS

         Plaintiffs argue that Defendants (1) violated Sections 6 and 7 of the FLSA by ordering Plaintiffs to work off the clock; (2) circumvented the FLSA by paying only commissions and/or arbitrarily withholding commissions; (3) failed to create and maintain records required by the FLSA; and (4) willfully violated the FLSA. Rec. Doc. 146-1 at 11, 15, 18.

         Defendants' response memorandum focuses only on whether or not Plaintiffs established that Defendants willfully violated the FLSA. Rec. Doc. 157.[5] However, Defendants also attached an affidavit by Cherie Callaghan, H2O's office manager, that addresses several of the factual allegations made by Plaintiffs. Rec. Doc. 157-2. Therefore, the Court will consider the affidavit as part of Defendants' response to Plaintiffs' motion.[6]

         III. LAW AND ANALYSIS

         Under Federal Rule of Civil Procedure 56, summary judgment is appropriate only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). See also TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A genuine issue exists if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must point to “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. If and when the movant carries this burden, the non-movant must then go beyond the pleadings and present other evidence to establish a genuine issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

         However, “where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are insufficient to avoid summary judgment. Travelers Ins. Co. v. Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).

         A. DID DEFENDANTS VIOLATE THE FLSA BY REQUIRING PLAINTIFFS TO WORK OFF THE CLOCK?

         Section 6 of the FLSA requires certain employers to pay minimum hourly wages to their employees. 29 U.S.C. § 206(a)(1). Section 7 requires these employers to pay non-exempt employees who work more than forty hours during a workweek one and one-half times their regular rate of pay. 19 U.S.C. § 207(a)(1). The Portal to Portal Act, which amended the FLSA, provides that an employer is not liable for failing to pay minimum or overtime wages “on account of . . . activities which are preliminary or postliminary to” the “principal activity or activities” for which the employee is “employed to perform” which occur prior or subsequent to the time at which the employee commences or ceases such principal activity or activities. 29 U.S.C. § 254(a); see also Griffin v. S & B Eng'rs & Constructors, Ltd., 507 F. App'x 377, 380-81 (5th Cir. 2013); 29 C.F.R. § 790.8(a). “The legislative history further indicates that Congress intended the words ‘principal activities' to be construed liberally . . . to include any work of consequence performed for an employer, no matter when the work is performed.” § 790.8(a). Further, “[t]he Supreme Court has held that any activity that is ‘integral and indispensable' to a compensable ‘principal activity' is itself a compensable ‘principal activity' . . . .” Chambers v. Sears Roebuck & Co., 428 F. App'x 400, 409 (5th Cir. 2011) (citing IBP, Inc. v. Alvarez, 546 U.S. 21, 37 (2005); Steiner v. Mitchell, 350 U.S. 247, 252-53 (1956)). Thus, the Fifth Circuit previously explained that

the excepting language . . . was intended to exclude from F.L.S.A. coverage only those activities predominantly . . . spent in (the employees') own interests. No benefit may inure to the company. The activities must be undertaken for (the employees') own convenience, not being required by the employer and not being necessary for the performance of their duties for the employer. The exemption was not intended to relieve employers from liability for any work of consequence performed for an employer, from which the company derives significant benefit. Nor was the exemption to apply to work performed . . . before or after the regular . . . work shift . . . (as) an integral and indispensable part of the principal activities for which covered workmen are employed.

Dunlop v. City Elec., Inc., 527 F.2d 394, 398-99 (5th Cir. 1976) (quotation marks and quotations omitted).

         Further, training and similar activities are not considered working time if

(a) Attendance is outside of the employee's regular working hours;
(b) Attendance is in fact voluntary;
(c) The course, lecture, or meeting is not directly related to the employee's job; and
(d) The employee does not perform any productive work during such attendance.

29 C.F.R. § 785.27; see also 29 C.F.R. §§ 785.28-785.29. Thus, “[j]ob-related training activities are generally compensable under [the] FLSA . . . .” Moreau v. Klevenhagen, 956 F.2d 516, 521 (5th Cir. 1992), aff'd, 508 U.S. 22 (1993) (emphasis added) (citing § 785.27).

         Plaintiffs argue that Defendants violated Sections 6 and 7 in several ways.[7]

         First, they argue that Defendants required Plaintiffs to work off the clock during mandatory training sessions. Rec. Doc. 146-1 at 12. Plaintiffs explain that they were forced to sign “Training Contracts, ” “which provided that H2O would employ Plaintiffs as part of an ‘apprenticeship' program . . . .” Rec. Doc. 146-1 at 4. As part of the training program, Plaintiffs were allegedly required to attend weekly training sessions during business hours, without clocking in, and write book reports on personal time “on books wholly unrelated to hair styling.” Id. at 5 (citations omitted). To support these allegation, ...


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