Edward Monroe v. FTS USA, LLC
860 F.3d 389
| 6th Cir. | 2017Background
- FTS USA (with parent UniTek) employed cable technicians paid on a piece-rate system; technicians alleged a company-wide "time-shaving" policy that caused underreporting of overtime by working off-the-clock, recording lunches not taken, or managers altering timesheets.
- Plaintiffs filed an FLSA collective action; district court conditionally certified and, after discovery on a 50-person representative sample (agreed to by the parties), the case proceeded to a representative trial with 17 testifying technicians and additional manager/corporate testimony.
- A jury found class-wide liability (willful FLSA violations) and returned average unrecorded hours for testifying technicians; the district court applied an estimated-average method to calculate damages for all opt-in plaintiffs and used a 1.5 multiplier.
- The Sixth Circuit initially affirmed certification and liability but reversed the district court’s damages calculation; the Supreme Court GVR'd the panel decision for reconsideration in light of Tyson Foods; the panel here reaffirms certification and liability but again reverses the damages calculation and remands for recalculation.
- Defendants challenged: (1) certification/"similarly situated" status, (2) sufficiency of representative evidence to prove liability for non-testifying opt-ins, (3) use of an estimated-average damages approach and the district court’s arithmetic (hourly-rate recalculation and use of 1.5 multiplier), and (4) a Seventh Amendment jury-rights issue regarding damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Collective-action certification (29 U.S.C. § 216(b)) | FTS technicians share common duties, timekeeping, and a company-wide policy; representative trial plan agreed in discovery supports collective treatment | Differences in locations, supervisors, and reasons for underreporting require individualized adjudication and decertification | Affirmed certification; applying O’Brien factors, court finds technicians similarly situated and collective trial appropriate |
| Use of representative testimony to prove liability for non-testifying opt-ins | Representative testimony from 17 technicians plus manager/corporate evidence and records suffices under Mt. Clemens/Tyson when employer records are inadequate | Representative testimony was non-representative and insufficient to prove liability for absent plaintiffs | Affirmed: representative testimony permitted and sufficient to support jury verdict of class-wide liability |
| Damages methodology (estimated-average and multiplier) | Average of testifying technicians’ unpaid hours may be applied to non-testifying opt-ins under Mt. Clemens; district court used multiplier of 1.5 | Estimated-average approach misapplied; court used wrong multiplier and failed to recalculate hourly rates for increased hours, producing overcompensation | Reversed: district court’s damages calculation vacated; remanded to recalculate damages consistent with FLSA piece-rate rules (recalculate hourly rates and use .5 additional half-time multiplier) |
| Seventh Amendment / jury role in damages | Plaintiffs: jury’s class-wide liability findings allowed the court to do the arithmetic; defendants declined a second jury and thus forfeited jury-on-damages claim | Assigning arithmetic extrapolation to the judge (averaging averages to award all opt-ins) violated the jury right; representative proof was not sufficiently representative for judge-only damage calculation | Majority: no Seventh Amendment violation (defendants waived jury on damages and court may do arithmetic); concurrence/dissent would find a Seventh Amendment problem and would require subclassing or jury findings for non-testifying plaintiffs |
Key Cases Cited
- Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) (establishes burden-shifting and "just and reasonable inference" standard for proving hours when employer records are inadequate)
- Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016) (permits representative/statistical evidence in class/collective cases where the sample would sustain individual findings; reaffirms Mt. Clemens framework)
- O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567 (6th Cir. 2009) (sets the Sixth Circuit’s three-factor test for FLSA "similarly situated" collective certification)
- Espenscheid v. DirectSat USA, LLC, 705 F.3d 770 (7th Cir. 2013) (decertified collective where representative proof could not distinguish lawful from unlawful underreporting; discussed as contrasting approach)
- Herman v. Palo Group Foster Home, Inc., 183 F.3d 468 (6th Cir. 1999) (applies Mt. Clemens burden shifting; employer’s failure to keep records permits reasonable, approximate awards)
- Cole Enterprises, Inc. v. U.S. Dep’t of Labor, 62 F.3d 775 (6th Cir. 1995) (endorses representative testimony and estimated-average approach to award back wages to non-testifying employees)