A mud-covered pig is still a pig

We’re used to seeing off-the-clock cases for minimum wage and overtime, but at times such claims aren’t available, such as when the employees are paid well above the minimum wage and either do not work overtime or are paid for it. In most states, and under the FLSA, such claims are really ones for breach of contract rather than for wage and hour violations. The question then arises whether such contract claims, ones that employees worked off the clock but received minimum wage and overtime, can be asserted on a class-wide basis.

This was the issue in Hopkins v. U.S. Bancorp., Case No. 1:16-cv-552 (S.D. Ohio Aug. 17, 2017). In that case, the employee sought to bring class-wide claims on the basis that he and others were not paid for all hours worked. He premised his claim upon the breach of an oral contract in which he claimed he was told orally in a job interview that he would make about $15 per hour plus benefits. What made the case dangerous was not the amount of wages, which was relatively small (and, frankly, somewhat weak), but the plaintiff’s effort to bolster that claim by wrapping a class action claim around it on behalf of thousands of other workers.

The district court found countless problems with these allegations. First, the promise was too vague to enforce, particularly the notion of unspecified benefits. It also noted, based on materials submitted, that the employee had actually been paid above that amount during his employment and that, in any case, his offer describing his compensation explicitly stated that it did not “create a contract of employment.”

The court noted problems from a class perspective as well. As the alleged conversation during his job interview involved a single manager and was oral, the claims were highly individualized and could not be extrapolated across the putative class. As the court noted, the “finder of fact would have to determine for each individual class member whether a similar conversation was had with an authority figure . . . and what promises were or were not made with regards to each person.”

Accordingly, the court dismissed the complaint in its entirety.

While the result in Hopkins is positive, it reflects attempts by plaintiffs’ counsel to broaden the reach of already lucrative wage and hour cases with new or expanded theories. Fortunately, in this instance, the court was willing to dispose of the claims at an early stage.

The Bottom Line: Casting an off-the-clock case as one for breach of a contract to pay wages may have problems on an individual basis, and such a case makes poor fodder for class or collective action litigation.