timesheet

A federal appeals court has ruled that although Lackawanna County failed to pay overtime to some of its employees, it did not show a “willfulness” to violate the Fair Labor Standards Act.

The U.S. Court of Appeals for the Third Circuit also upheld the lower court’s decision to reduce plaintiffs counsel’s fee request by nearly 67 percent.

The case centered on three part-time Lackawanna County employees’ claims that there were not paid overtime by the county. According to Judge Thomas I. Vanaskie’s opinion, the county did not dispute the overtime issue and the case went to trial on the issue of damages, which were awarded to the plaintiffs in the amount of nearly $5,600.

The plaintiffs appealed the district court’s finding that the county did not willfully violate the FLSA with shoddy time-tracking. They also disputed the court’s decision to award $55,000 in attorney fees rather than the requested $166,000.

Plaintiffs Michael Souryavong, Nelson Rolon and Edwin Velez argued that their evidence that the county failed to pay overtime despite being aware of its duty under the FLSA was sufficient to show willfulness. The Third Circuit disagreed.

“First, decisions from our sister circuits indicate that an FLSA violation must have a degree of egregiousness that is lacking in Lackawanna County’s case. For example, a jury question on willfulness is present when a city is well aware of the FLSA’s strictures, sets up a bureaucracy to classify pay and benefits and properly calculate overtime, and then despite all that allows a misclassification of a monthly payment to continue for nine years,” Vanaskie said.

The issue in this case was addressed after a year, Vanaskie added.

He continued that even if an email from the county’s human resources manager, which the plaintiffs pointed to, “shows the county was aware of an overtime problem generally at the time of the Souryavong and Rolon violations, it does not indicate an awareness of an FLSA overtime problem specifically. A plaintiff must put forward at least some evidence of the employer’s awareness of a violation of the FLSA overtime mandate.”

The court also upheld the reduced fee award for the plaintiffs’ attorney, Cynthia Pollick.

Pollick, an employment lawyer in Luzerne County, drew the ire of a federal judge last month when she requested three-quarters of a million dollars for a case that settled for $25,000.

“Ms. Pollick’s fee petition is ‘mind boggling’ and ‘outrageously excessive.’ In fact, it is more than that. The vast majority of Ms. Pollick’s entries are larded with excreta unbecoming of any attorney in this district (and certainly unbillable to a client under any stretch of the imagination),” U.S. District Judge Matthew Brann of the Middle District of Pennsylvania said in that case.

Vanaskie’s words in the present case were considerably less harsh, but he still said Pollick charged too much.

Vanaskie said, “she argues the district court should have accepted her proposed $400-per-hour rate instead of the $250-per-hour rate the court picked because the county proffered no evidence to contradict her proposed rate. That is not true—the county did offer evidence. It presented an attorney’s affidavit stating that attorneys of similar stature in the region were compensated at rates … not far from the $250-per-hour rate the court used.”

Neither Pollick, who works at the Employment Law Firm in Pittson, nor the county’s attorney, Harry Coleman of Carbondale, responded to requests for comment.