Sivetts v. Board of County Commissioners, 771 F.3d 697

Employees alleged FLSA overtime was calculated at Actual Rate, not Promised Rate, during 2010–2012.
Promised Rate = higher hourly rates posted in salary schedules; Actual Rate = hourly wage actually paid.
Employees claimed unpaid overtime under 29 U.S.C. § 216(b) based on the gap between Promised and Actual Rates.
District court dismissed the Third Amended Complaint (TAC) under Rule 12(b)(6) for failure to allege regular rates were Promised Rates.
County’s First Motion to Dismiss argued enforcement of Promised Rates; later arguments framed around regular rate defined by Actual Rate.
On appeal, court held the regular rate is the Actual Rate and affirmed dismissal, also denying leave to amend.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Rule 12(g)(2) harmless error	Employees	County	Harmless error; merits reached
Regular rate definition under FLSA	Promised Rates are regular rates	Actual Rate is the regular rate	Actual Rate is the regular rate
Modification of Promised Rate by conduct	Mutual agreement to Promised Rates remained	Continued work at Actual Rate modified the agreement	Not reached; allegations fail under actual-rate rule
Leave to amend TAC	Should be granted leave to amend	Leave denied	District court did not abuse discretion

Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419 (U.S. 1945) (regular rate important for overtime calculation)
Walling v. Helmerich & Payne, 323 U.S. 37 (U.S. 1944) (regular rate equals hourly rate paid for non-overtime workweek)
Chavez v. City of Albuquerque, 630 F.3d 1300 (10th Cir. 2011) (regular rate may include more than contract rate when actually paid)
Walzer v. Muriel Siebert & Co., 447 F. App’x 377 (3d Cir. 2011) ( Rule 12(g)(2) harmless where arguments could be raised later)
Ennenga v. Starns, 677 F.3d 766 (7th Cir. 2012) (addressed successive pre-answer motions under Rule 12(g)(2))