A few out-of-state phone calls may establish FLSA coverage


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An administrative assistant, who regularly made three to five out-of-state phone calls per week to her employer’s customers and suppliers, may have been sufficiently engaged in interstate commerce to establish “one-on-one coverage” under the Fair. Labor Standards Act (FLSA), the United States Court of Appeals for the Eleventh Circuit concluded. St. Elien v. All county environmental services., US application 2021. LEXIS 7935 (11th Cir. March 18, 2021). The Eleventh Circuit has jurisdiction over Alabama, Georgia and Mississippi.

With regard to an employer’s obligation to pay overtime, the LSF generally provides that

no employer shall employ any of his employees who, during a working week, is engaged in trade or in the production of goods for trade, or is employed in an enterprise engaged in trade or in the production of goods for commerce, for a work week exceeding forty hours unless such employee receives remuneration for his employment in excess of the hours specified above at a rate of at least one and a half times the rate regular to which he is employed.

29 USC § 207 (a) (1). Generally, the question of whether an employee is covered by the FLSA is not in dispute, as the FLSA broadly covers not only those engaged in trade or the production of goods for trade (“individual coverage”), but also those which do not meet this standard. but who are employed by a covered employer – a “enterprise engaged in the trade or production of goods for commerce” (“enterprise coverage”). Sometimes, however, coverage conflicts arise, especially when a claim involves a small business that appears to only operate in one state.

This was the case with Wendy St. Elien, who worked as an administrative assistant for All County Environmental Services, a small pest control company in Broward County, Florida. St. Elien sued All County and its owners, claiming they violated the FLSA by not paying him overtime. The main issue at trial was whether the company had enough interstate contact to bring St. Elien into the FLSA’s individual coverage clause. To establish such coverage, St. Elien claimed that it called the company’s out-of-state customers, primarily to obtain payment information or permission to access the property of “snowbird” customers. , that is, those who lived outside the state. most of the year, but spent their winters in Florida. St. Elien also phoned out-of-state suppliers to discuss invoicing and payments for local purchases made by All County. St. Elien regularly made these types of phone calls three to five times a week.

Two days after the trial began, the district court handed down a legal judgment in favor of All County, ruling that the company was not covered by the FLSA. The court of first instance based its decision mainly on Thorne v. All Catering Services, Inc., 448 F.3d 1264 (11th Cir. 2006), who held that for an employee to be “engaged in commerce” he “must participate directly in the actual movement of people or things in interstate commerce in (i ) working for an instrument of interstate commerce, for example, employed in the transport or communications industry, or by (ii) regularly using the instruments of interstate commerce in his work, for example, regular and recurring use of the telephone, telegraph, mail or interstate travel. ” Identifier. at 1266. The court of first instance concluded that St. Elien could not meet any part of this standard and dismissed the case. St Elien appealed and the Eleventh Circuit overturned.

In setting aside and remitting the case (presumably for a new trial), the Court of Appeal noted that the district court had reached an erroneous conclusion in applying the second method recognized in Thorne whereby individual FLSA coverage can be established, that is, when an employee regularly uses “telephone, telegraph, mail, or interstate travel”. Contrary to the trial court ruling, a reasonable jury could conclude that St. Elien’s weekly telephone calls to customers and sellers were sufficient to establish individual FLSA coverage, found the eleventh circuit. The Court of Appeal noted that several Department of Labor (DOL) regulations supported this conclusion, most notably 29 CFR § 779.103, which states in part that “employees engaged in interstate or foreign commerce understand. . . workers who regularly use courier, telephone or telegraph for interstate communications ”and 29 CFR § 776.23 (d) (2), which provides in part that“ employees who regularly use commercial instruments, such as the telephone , the telegraph and the couriers for interstate communications communication falls within the scope of the [FLSA]. “

Jackson Lewis PC © 2021Revue nationale de droit, volume XI, number 82

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