Current and former employees of Gold’s Gym International, Inc. (“Gold’s”) flexed their collective muscles and sued the chain, alleging it forced them to work “off the clock” in violation of the Fair Labor Standards Act (“FLSA”). Plaintiff sales managers say Golds did not pay them overtime even though it required them to train fitness consultants and monitor their sales numbers, which resulted in 50-60 hour workweeks.
Plaintiffs filed their federal lawsuit last week in San Antonio, Texas, claiming that the Gold’s corporation is organized under the laws of Texas and operates facilities all over the United States, with 20 locations in San Antonio alone. Plaintiffs want to certify a collection action for all current and former Sales Managers employed from October 2, 2009 – October 2, 2012, and are demanding back pay for unpaid wages, unpaid overtime, liquidated damages and attorneys’ fees.
Plaintiffs argue they are not exempt from overtime pay requirements because they do NOT engage in any of the following:
(a) manage an enterprise or a recognized department or subdivision of Gold’s;
(b) direct the work of two or more employees;
(c) have the authority to hire or fire other employees, nor were their suggestions on status of other employees given particular weight;
(d) perform office or no-manual work directly related to the management or general business operations of Gold’s or Gold’s customers;
(e) exercise discretion or independent judgment with respect to matters of significance; or
(f) customarily or regularly engage away from Gold’s place of places of business in performing their primary duty.
Plaintiffs acknowledge that Gold’s has a company policy prohibiting employees from working more than forty hours a week without prior approval. “Overtime approval required” policies are common, but can easily be avoided by plaintiff employees who claim, as they have in this Gold’s case, that the employer circumvented its own policy by withholding overtime approval and requiring them to clock out but continue working or to falsify their time records.
Employers with “overtime approval required” policies should also remember these tips:
(1) non-exempt employees who violate the policy and work more than 40 hours without approval must still be paid for all hours worked;
(2) employees who violate the policy can and should be consistently and equally disciplined;
(3) the discipline for failing to obtain prior approval should usually be progressive discipline (everything from “take a lap” for the first offense to “you’re fired!” after appropriate warnings and reprimands have been given to no avail).
Whether this dispute will “work out” for either side remains to be seen. In the meantime, we will “weight” and see!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
