(a) In addition to acting (or omitting to act) in good faith and in conformity with an administrative regulation, order, ruling, approval, interpretation, enforcement policy or practice, the employer must also prove that he actually relied upon it.
101
101 In a colloquy between Senators Thye and Cooper (93 Cong. Rec. 4451), Senator Cooper pointed out that the purpose of section 9 was to provide a defense for an employer who pleads and proves, among other things, that his failure to bring himself under the Act “grew out of reliance upon” the ruling of an agency. See also statement of Representative Keating, 93 Cong. Rec. 1512; colloquy between Representatives Keating and Devitt, 93 Cong. Rec. 1515; cf. colloquy between Senators Donnell and Ball, 93 Cong. Rec. 4372.
(b) Assume, for example, that an employer failed to pay his employees in accordance with the overtime provisions of the Fair Labor Standards Act. After an employee suit has been brought against him, another employer calls his attention to a letter that had been written by the Administrator of the Wage and Hour Division, in which the opinion was expressed that employees of the type employed by the defendant were exempt from the overtime provisions of the Fair Labor Standards Act. The defendant had no previous knowledge of this letter. In the pending employee suit, the court may decide that the opinion of the Administrator was erroneous and that the plaintiffs should have been paid in accordance with the overtime provisions of the Fair Labor Standards Act. Since the employer had no knowledge of the administrator's interpretation at the time of his violations, his failure to comply with the overtime provisions could not have been “in reliance on” that interpretation; consequently, he has no defense under section 9 or section 10 of the Portal Act.
Notes of Decisions
In Re Cargill Meat Solutions Wage & Hour Litig., 632 F. Supp. 2d 368 (M.D. Penn. 2008).
“Cargill’s “practice (paying “mesh-wearing” employees five minutes pay for donning and doffing and not paying “non-mesh-wearing” employees for donning and doffing) has not changed since the Hazleton Plant’s first day of operations” in January 2002.”
Ketchum v. City of Vallejo, 523 F. Supp. 2d 1150 (E.D. Cal. 2007).
· cites it 2× “” 29 C.F.R. § 790.16 (a). If an employer has "no knowledge of the administrator’s interpretation at the time of his violations, his failure to comply with the overtime provisions could not have been 'in reliance on’ that interpretation; consequently, he has no defense under…”
Gaxiola v. Williams Seafood of Arapahoe, Inc., 776 F. Supp. 2d 117 (E.D.N.C. 2011).
“29 C.F.R. § 790.16 (a). In deciding whether defendants have proven good faith, the court must look at (1) the particular “agency action” upon which the defendants relied; (2) whether defendants can show actual reliance; and, (3) whether defendants acted in good faith, both…”
Bollinger v. Residential Capital, LLC, 761 F. Supp. 2d 1114 (W.D. Wash. 2011).
“14 ; 29 C.F.R. § 790.16 . These requirements ensure that employers bear the “heavy” burden of avoiding FLSA overtime requirements.”
Sisk v. Sara Lee Corp., 590 F. Supp. 2d 1001 (W.D. Tenn. 2008).
“, 29 C.F.R. § 790.16 (a) (“[T]he employer must also prove that he actually relied upon [the administrative opinion].”
Dean v. 1715 Northside Drive, Inc., 224 F. Supp. 3d 1302 (N.D. Ga. 2016).
“” 29 C.F.R. § 790.16 . .The agency designated to provide interpretations of the FLSA is the Administrator of the WHD.”
Regan v. City of Charleston, 131 F. Supp. 3d 541 (D.S.C. 2015).
“” Blotzer, 2012 WL 6086931 , at *15; see 29 C.F.R. § 790.16 (a) (“In addition to acting (or omitting to act) in good faith and in conformity with an administrative regulation, order, ruling, approval, interpretation, enforcement policy or practice, the employer must also prove…”
De Luna-guerrero v. North Carolina Grower's Ass'n, 370 F. Supp. 2d 386 (E.D.N.C. 2005).
“29 C.F.R. 790.16(a). In deciding whether defendants have proven good faith, the court must look at (1) the particular “agency action” upon which the defendants relied; (2) whether defendants can show actual reliance upon it; and, (3) whether employer acted in good-faith, both…”
Swigart v. Fifth Third Bank, 870 F. Supp. 2d 500 (S.D. Ohio 2012).
“” 29 C.F.R. § 790.16 (a). This Court finds that for reasons explained in detail below, genuine issues of material fact exist as to whether Defendant relied on and conformed to the 2006 Opinion Letter.”
Baker v. GTE North Inc., 927 F. Supp. 1104 (N.D. Ind. 1996).
“GTE, which bears the burden on the issue of liquidated damages, has not provided support for the proposition that an employer’s parent corporation’s inquiry is automatically imputed to the employer.”
Sack v. Miami Helicopter Serv., Inc., 986 F. Supp. 1456 (S.D. Fla. 1997).
“29 C.F.R. § 790.16 . 35.The Eleventh Circuit has opined that in order to avoid liquidated damages under the FLSA, the “employer must plead and prove that the act or omission complained of was: (1) in good faith; (2) in conformity with; and (3) in reliance on an administrative…”
Gonzalez v. Diamond Resorts Int'l Mktg., Inc. (D. Nev. 2021).
“29 C.F.R. § 790.16 (a). Additionally, the “regulations, orders, 6 ruling, approvals, interpretations, administrative practices and enforcement policies relied upon 7 and conformed with must be those of an agency and not of an individual officer or employee of 8 the agency.”
— 29 C.F.R. § 790.16(a) — 2 cases
In Re Cargill Meat Solutions Wage & Hour Litig., 632 F. Supp. 2d 368 (M.D. Penn. 2008).
“Cargill’s “practice (paying “mesh-wearing” employees five minutes pay for donning and doffing and not paying “non-mesh-wearing” employees for donning and doffing) has not changed since the Hazleton Plant’s first day of operations” in January 2002.”
De Luna-guerrero v. North Carolina Grower's Ass'n, 370 F. Supp. 2d 386 (E.D.N.C. 2005).
“29 C.F.R. 790.16(a). In deciding whether defendants have proven good faith, the court must look at (1) the particular “agency action” upon which the defendants relied; (2) whether defendants can show actual reliance upon it; and, (3) whether employer acted in good-faith, both…”
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