United States District Court, E.D. Louisiana
CARRIE BIGGIO, ET AL.
H2O HAIR INC., ET AL.
ORDER AND REASONS
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.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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”),
Holli M. Gaspard (“Ms. Gaspard”),  and XYZ Insurance
Company. 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.
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
THE PARTIES' CONTENTIONS
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.
response memorandum focuses only on whether or not Plaintiffs
established that Defendants willfully violated the
FLSA. Rec. Doc. 157. 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
LAW AND ANALYSIS
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).
“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).
DID DEFENDANTS VIOLATE THE FLSA BY REQUIRING PLAINTIFFS TO
WORK OFF THE CLOCK?
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
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
Dunlop v. City Elec., Inc., 527 F.2d 394, 398-99
(5th Cir. 1976) (quotation marks and quotations omitted).
training and similar activities are not considered working
(a) Attendance is outside of the employee's regular
(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
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).
argue that Defendants violated Sections 6 and 7 in several
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, ...