Kristy Douglas v. Xerox Business Services
875 F.3d 884
| 9th Cir. | 2017Background
- Plaintiffs Kristy Douglas and Tysheka Richard were Xerox call-center customer-service representatives paid under a complex scheme that assigns different rates to different tasks and sometimes uses per-minute pay.
- Xerox computes total pay for a workweek, divides by hours worked that week, and pays a weekly subsidy if the resulting hourly average falls below the federal minimum wage (workweek averaging).
- Plaintiffs sued as a class, alleging Xerox’s method violates the FLSA by averaging across the workweek rather than ensuring each individual hour met the statutory hourly minimum.
- The district court initially accepted the hourly measure but later granted summary judgment to Xerox after concluding the contract specified weekly subsidy calculations; interlocutory appeal under 28 U.S.C. § 1292(b) followed.
- The Ninth Circuit framed the question as statutory interpretation: does the FLSA require measuring minimum-wage compliance hour-by-hour, or may employers average wages over the workweek?
Issues and Key Cases Cited
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FLSA minimum-wage compliance must be measured hour-by-hour or may be averaged over the workweek | FLSA requires each hour to meet the statutory hourly minimum; employers may not average across hours | Workweek may be used as the unit of measurement; employer compliance may be determined by weekly average | Per-workweek averaging is permissible; employer satisfied minimum-wage requirement under weekly averaging |
Key Cases Cited
- Zenith Radio Corp. v. United States, 437 U.S. 443 (Sup. Ct.) (longstanding administrative construction entitled to weight)
- Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (Sup. Ct.) (Congressional inaction on longstanding agency interpretation is persuasive)
- Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145 (Sup. Ct.) (legislative acquiescence to agency interpretation is significant)
- Dove v. Coupe, 759 F.2d 167 (D.C. Cir.) (adopting per-workweek measure and noting Wage & Hour Division practice)
- United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487 (2d Cir.) (workweek averaging satisfies FLSA minimum-wage purpose)
- Hensley v. MacMillan Bloedel Containers, Inc., 786 F.2d 353 (8th Cir.) (endorsing per-workweek measure)
- Ballaris v. Wacker Siltronic Corp., 370 F.3d 901 (9th Cir.) (discussed but distinguished; does not control here)
- United States v. Rosenwasser, 323 U.S. 360 (Sup. Ct.) (permits translating non-hourly compensation to hourly equivalents for FLSA compliance)