Wednesday, February 23, 2011

Artfully pleaded WPCA case gets remanded to Boone County Circuit Court

Davis v. Murdock, Civil Action Nos. 2:10-cv-01332, 2:10-cv-01333 (S.D.W.Va. Feb. 9, 2011) presents an interesting jurisdictional question. 
The defendant employer removed a pair of W. Va. Wage Payment & Collection Act claims. The plaintiffs did a good job of artfully pleading their case to avoid a federal question:

The plaintiffs request compensation for all "unrecorded and uncompensated work required or permitted by Defendants." (Compl. ¶ 13.) Each plaintiff states that he is "only seeking payment of his wages at normal hourly rates," and specifies that he is not requesting overtime wages. (Id. ¶ 9.) The plaintiffs seek recovery only upon a showing that defendant's conduct was wrong under state law. At no point does either Complaint reference the FLSA. To the contrary, each plaintiff explicitly limits his cause of action to relief provided by the WPCA and disclaims any attempt to collect overtime pay or enforce any right provided by federal rather than state law.
Judge Goodwin distinguished this case from Anderson v. Sara Lee Corp., 508 F.3d 181, n. 10 (4th Cir. 2007) (discussing the possibility that the FLSA conflicted with and preempted claims under North Carolina common law, and noting that "[t]here is no question that express preemption and field preemption are inapposite to this dispute") and Westfall v. Kendle Int'l, CPU, LLC,No. 1:05-cv-0118, 2007 WL 486606, at *13-14 (S.D. W. Va. Feb. 15, 2007) (discussing potential causes of action under the WPCA and the FLSA for an employer's failure to compensate employees for overtime hours), both of which relied on federal law to provide a right to compensation (overtime).

But inevitably, if the “uncompensated time” puts the employee over 40 hours in a work week, a federal question will be raised because the FLSA will automatically kick in, and entitlement to overtime cannot be waived.

Not good enough for Judge Goodwin. He found there was no federal question and sent the case back to Boone County.

The WPCA does not create a substantive right to compensation – it just governs the timing of wage payments the employee is otherwise entitled to. A plaintiff must rely on state or federal law to create the “right” to the wages (breach of contract, FLSA, etc.) Where, as here, the plaintiffs just claim they were not paid for “straight time” worked, that’s a plain old state law breach of contract claim. Then, if they prove entitlement (“I did the work but didn’t get paid”), the WPCA will be implicated, and the employer will be liable for the untimely payment of those wages.