Fast v. Cash Depot Ltd.

296 F. Supp. 3d 998
CourtDistrict Court, E.D. Wisconsin
DecidedNovember 6, 2017
DocketCase No. 16–C–1637
StatusPublished
Cited by2 cases

This text of 296 F. Supp. 3d 998 (Fast v. Cash Depot Ltd.) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fast v. Cash Depot Ltd., 296 F. Supp. 3d 998 (E.D. Wis. 2017).

Opinion

William C. Griesbach, Chief Judge

This case presents the important question of whether an employer accused of violating the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (FLSA) in calculating the wages due its employees is required to incur the substantial costs and attorneys fees of a collective or class action even when it acknowledges the violations and promptly attempts to remedy them. Cash Depot, Ltd., is a Wisconsin company that sells, leases, rents, installs, ships, and services Automated Teller Machines (ATMs). Plaintiff Timothy Fast was employed by Cash Depot as a Field Service Technician for a little over a year between July 6, 2015 to July 29, 2016. On December 29, 2016, Fast brought this collective action against his former employer on behalf of himself and all other similarly situated current and former non-exempt Field Service Technicians employed by Cash Depot, alleging violations of the FLSA.

Relatively early in the case, Cash Depot reached the conclusion that it had been underpaying its employees based upon a wage audit conducted by its accountant. Cash Depot then issued payroll checks for the underpayment calculated by its accountants to its current and former employees. On July 7, 2017, the court approved the parties' stipulation staying all proceedings for sixty days to allow Fast's counsel to review Cash Depot's calculations regarding the amounts owed to Fast. Counsel for Fast disputes Cash Depot's *1000calculation of his client's underpayment, but refuses to tell Cash Depot what he believes the correct amount is or how he arrived at it. Currently before the court are Cash Depot's motions to dismiss Fast's claims on mootness grounds and for summary judgment. The stay was continued pending resolution of the pending motions.

BACKGROUND

Fast alleges in his complaint that Cash Depot violated the FLSA by failing to lawfully compensate current and former non-exempt field service technicians at a correct rate of overtime pay and for all overtime hours worked at that overtime rate of pay. Id. ¶ 4. The FLSA requires that non-exempt employees be paid overtime at a rate of one-and-a-half times their regular rate of pay. 29 U.S.C. § 207(a)(1). Fast's hourly rate for regular hours of work during his employment at Cash Depot was $15.00 per hour. Cash Depot paid him at a rate of one-and-a-half times that amount, or $22.50 per hour, for overtime hours. Bradley Decl. ¶ 15, ECF No. 24. What Cash Depot apparently did not realize, however, is that the FLSA defines "regular rate" of pay to include "all remuneration for employment paid to, or on behalf of, an employee," subject to several exceptions not relevant here. Id. at § 216(e). Fast alleged that Cash Depot failed to include non-discretionary bonuses and on-call premiums in calculating its employees' regular rates of pay for purposes of determining the amount of overtime compensation its employees should receive each workweek.

Sometime after Fast filed the instant action, Cash Depot's legal counsel retained Schenck SC, an accounting firm, to review Cash Depot's payroll practices concerning the payment of on-call premiums, shift premiums, bonuses, and overtime to its employees for the time period of December 2013 through February 2017. Bradley Decl. ¶ 3. Even though Fast's complaint only considered overtime payments to field service technicians, Schenck audited the payroll records for all Cash Depot employees. Id. ¶ 7. Schenck learned that Cash Depot paid its field service technicians a $75 on-call premium each week the technicians were on call but did not pay them shift premiums. Id. ¶ 9. Schenck also reviewed Cash Depot's definitions of "workweek" and "on-call week." Cash Depot defined its workweek as Sunday through Saturday and its on-call week as Monday through Sunday. Based on these designations, the $75 on-call premium spanned two workweeks. Id. ¶ 10. The field service technicians' on-call week began on Monday, the second day of the workweek, and ended Sunday, the start of the following workweek. After considering Cash Depot's payroll materials, Schenck concluded Cash Depot did not correctly factor the on-call premiums into its employees' regular rates of pay when computing overtime and began calculating the proper amounts Cash Depot owed its employees.

Schenck calculated the overtime compensation amount for Fast by reviewing his daily and weekly time reports and payroll report. Id. ¶ 13. It noted which weeks Fast earned an on-call premium and divided the premium between the two workweeks. Schenck concluded Fast should receive $64.29 for the Monday through Saturday he was on call and $10.71 for Sunday, his last on call day but the start of Cash Depot's workweek. Id. ¶ 14. Schenck then verified the workweeks Cash Depot paid Fast overtime for all hours worked in excess of forty hours. It found that Cash Depot had already compensated Fast for overtime at his regular hourly rate of $15.00 per hour, so it developed a formula to calculate the additional overtime owed to him based on the on-call premiums. Id. ¶ 16. To determine this *1001number, Schenck divided the on-call premium by the number of hours Fast worked in a given workweek.

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Bluebook (online)
296 F. Supp. 3d 998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fast-v-cash-depot-ltd-wied-2017.