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Paralegals get green light for FLSA class action

A Texas personal injury firm last week failed in its bid to derail a putative class action brought by salaried paralegals who claimed they were entitled to overtime under the Fair Labor Standards Act. 

Batting aside The Mostyn Law Firm’s contention that its paralegals’ job duties were too varied to permit class treatment, a federal judge on Thursday granted conditional certification in an FLSA lawsuit brought by Sherri L. Davis and Carlos Alvarado.

“[T]he Court believes that Plaintiffs have advanced sufficient evidence to support conditional certification on a firm-wide basis, and as to all salaried paralegals,” wrote U.S. District Court Judge Keith P. Ellison in his Jan. 19 order.

The Mostyn Law Firm has its headquarters in Houston. Some of the firm’s 30 lawyers also work out of offices in Austin, Beaumont and Galveston. Of late, the firm has been heavily engaged in representing property owners in insurance disputes arising from Hurricanes Ike and Rita.

Davis alleged that she was employed as a salaried paralegal with Mostyn from June 2007 until February 2009. According to Davis, she typically worked more than 70 hours a week. She claimed that dozens of other salaried paralegals at Mostyn worked more than 40 hours per week and, like her, were denied overtime pay.

Alvarado likewise claimed that he was employed by Mostyn as a paralegal from July 2009 to June 2010.  According to Alvarado, he regularly worked in excess of 50 hours a week. He also alleged that “dozens” of paralegals at Mostyn worked in excess of 40 hours a week and were not paid overtime.

Last August, Davis and Alvarado filed a class complaint for FLSA overtime against Mostyn in the U.S. District Court for the Southern District of Texas. The plaintiffs subsequently moved for issuance of class notice, seeking to notify current and former Mostyn paralegals of their right to recover unpaid overtime by joining the lawsuit.

Mostyn’s general position has been that the plaintiffs were independent contractors and that at least five different exemptions to the FLSA apply to any given paralegal in its workforce.

According to Mostyn, class treatment was particularly inappropriate because its paralegals perform a wide variety tasks depending on how they are classified within the firm and the particular office in which they work.

These were the main points in Mostyn’s argument that the plaintiffs could not show that they were similarly situated to other paralegals for purposes of justifying conditional FLSA class certification.

Judge Ellison concluded Thursday that the plaintiffs had made a sufficient showing to go forward with issuing notice to potential class members.

In particular, the judge decided that the plaintiffs satisfied their burden of providing evidence that Mostyn subjected a group of similarly situated potential class members to a “single decision, policy, or plan” that violated the provisions of the FLSA.

Addressing Mostyn’s point that its paralegals could not be deemed similarly situated because of their varied duties, the judge wrote:

Although there may have been some variation in paralegal duties, such variation does not indicate that the paralegals were not similarly situated. Indeed, even if paralegals’ duties “vary to some degree from day-to-day and possibly from location to location,” or even from docket to docket, the “thrust of the job duties,” as established by Plaintiffs’ declarations, remains similar. Moreover, the fact that some paralegals may have had different titles does not contravene the fact that the paralegals are in essence similarly situated.

The court also found that the plaintiffs sufficiently alleged that they were subject to the same company-wide policy as other salaried paralegals, explaining that “Plaintiffs state that they have knowledge of other paralegals who performed similar work, were paid on a salary basis, and did not receive overtime. In addition, Davis alleges that she spoke with her office manager, who informed her that no salaried employee received overtime pay. At this stage, Plaintiffs’ declarations and allegations are sufficient to meet their lenient obligation.”

Mostyn probably imagined it had an ace in the hole in the form of the Supreme Court’s articulation of a heightened standard for class certification in Wal-Mart Stores v. Dukes

The firm was to be disappointed in this regard. The judge wrote that “Dukes does not advance Mostyn’s case, as Plaintiffs and salaried paralegals who have worked at Mostyn during the three-year period do not suffer from ‘dissimilarities’ that may ‘impede the generation of common answers.’”

Dispensing with Mostyn’s remaining objections, the judge conditionally certified a class of all of the firm’s “current and former salaried paralegal employees who worked more than forty (40) hours in a workweek but were not paid one and one-half times their regular rate of pay at any time starting August 3, 2008 to present.” (Davis v. The Mostyn Law Firm)

As a consequence of the judge’s decision, Mostyn has to go about the process of turning over to the plaintiffs information necessary for identifying and contacting potential class members.

To keep everything on the up and up, the judge further prohibited Mostyn’s management “from communicating, directly or indirectly, with any current or former paralegal employees about any matters which touch or concern the settlement of any outstanding wage claims or other matters related to this suit during the opt-in period.”

– Pat Murphy


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