Graham v. Babinski Properties
| Decision Date | 18 February 1997 |
| Docket Number | No. 19680,19680 |
| Citation | 1997 SD 39,133 Lab.Cas.P 33,562 N.W.2d 395 |
| Court | South Dakota Supreme Court |
| Parties | 133 Lab.Cas. P 33,528, 3 Wage & Hour Cas.2d (BNA) 1618, 1997 SD 39 Floyd GRAHAM, Plaintiff and Appellee, v. BABINSKI PROPERTIES, Defendant and Appellant. . Considered on Briefs |
Jay Kolb, Sioux Falls, for plaintiff and appellee.
Mark V. Meierhenry of Danforth, Meierhenry & Meierhenry, L.L.P., Sioux Falls, for defendant and appellant.
¶1 Floyd Graham, an employee of Babinski Properties, sought overtime pay after his supervisors imposed duties he could not complete within his regular shift. Babinski refused, insisting their only agreement was for forty hours a week. Graham brought suit under the Fair Labor Standards Act claiming his superiors had reason to know he was working overtime. Can Babinski's constructive knowledge its employee was working excess hours create liability for overtime pay? We hold such knowledge was sufficient and affirm the judgment for Graham.
¶2 Babinski owns and manages several apartment complexes in Sioux Falls. Graham worked in 1991 as a caretaker for the building in which he lived. Initially, his hourly wages were used to offset his monthly rent. In April 1993, Babinski hired him as a full-time groundskeeper at one of the apartment complexes. By oral agreement, Graham would work from 8:00 a.m. until 4:30 p.m., Monday through Friday, and receive $350 a week.
¶3 Graham was to mow and trim lawns, plant and prune trees, and generally maintain the complex grounds in the summer. During the winter, he was responsible for snow removal, maintenance, and repairs. As time progressed, Graham discovered it took at least fifty hours a week for lawn maintenance alone. At times, he was called away from groundskeeping duties to perform varied maintenance jobs. He felt pressured by his supervisor to complete all his tasks, especially when Don Babinski, the owner, was in town. Graham helped with several special projects, some of which were at other Babinski properties, including renovation and basement work, roof repairs, night security services at his apartments, and "on-call" emergency maintenance.
¶4 From April 1993 until July 1994, Graham was not required to fill out time cards. After July 1994, however, he submitted time cards with the assistance of Babinski employees, generally showing he worked forty hours each week. At this point, the parties' renditions diverge. Graham insisted he was forced to work overtime to keep up with his duties, as well as respond to all the special projects he was delegated. Apartment residents testified they would see or hear him working both before and after his assigned hours, while Babinski employees testified to the contrary. Graham said he discussed with his supervisor the added time he was working, but was informed he would receive extra days off during the winter to make up for the hours worked, a remedy he never obtained. He also testified he contacted Don Babinski about the situation, but claims he was threatened with an adverse parole report, should he decide to push the issue. Don Babinski did not testify at trial, but a supervisor denied any such conversation took place with Graham. Testimony over the time cards was also conflicting. Graham's supervisor declared Graham never claimed any overtime hours; conversely, Graham said he twice reported overtime, but when he did, he received no check at all. As a result, he began recording only forty hours a week on the cards, and his checks resumed. At trial, Babinski produced time cards with no overtime recorded. Graham denied certain notations were in his handwriting.
¶5 Graham resigned on January 4, 1996, due to a back injury suffered while laying carpet in a Babinski apartment. He sought overtime pay and cited instances when Babinski paid other employees overtime. Two full-time maintenance workers received overtime because, according to Babinski, they had bargained for it in their original employment negotiations, while Graham had not. Graham complained to the United States Department of Labor. In a letter, the Department responded it would investigate the claim when its backlog of cases permitted, but it also advised Graham that he could pursue a private action. Graham then commenced suit in circuit court pursuant to the Fair Labor Standards Act (FLSA), 29 USC § 206 et seq., alleging Babinski owed him $5,614.53 in back overtime wages. A unanimous jury agreed. He was awarded $16,096.58, which included back wages, an identical amount for liquidated damages ($5,614.53), and attorney fees ($4,867.52).
¶6 Babinski appeals, asserting the trial court erred: (1) by instructing the jury on implied contract when the parties had an express employment agreement; (2) by refusing instructions on express contract; and (3) in not directing a verdict when Graham failed to prove the existence of an agreement to pay overtime.
¶7 Babinski couches this appeal on the distinction between express and implied contracts, arguing the court erroneously instructed on implied contract when Graham had an express agreement which permitted no overtime. We review instructions as a whole. They are sufficient if they correctly state the law and so inform the jury. Courts should instruct on issues supported by competent evidence in the record. Schaffer v. Edward D. Jones & Co., 1996 SD 94, p 14, 552 N.W.2d 801, 806 (Schaffer II )(citing Bauman v. Auch, 539 N.W.2d 320, 323 (S.D.1995)); Ainsworth v. First Bank of SD, 472 N.W.2d 786, 788 (S.D.1991). Error is reversible only if it is prejudicial. Sommervold v. Grevlos, 518 N.W.2d 733, 739 (S.D.1994); Runge v. Prairie States Ins. of Sioux Falls, 393 N.W.2d 538, 541 (S.D.1986).
¶8 Babinski asserts Instructions 24 and 25 improperly allowed the jury to consider whether overtime was expressly or impliedly authorized. 1 For support, Babinski cites SDCL 53-1-3: To Babinski the first sentence means an employment contract cannot be both express and implied, but one or the other; therefore, an express forty-hour contract precludes an implied agreement for additional hours.
¶9 Express versus implied contract distinctions misshape the precise framework in which we must consider FLSA claims. Instructions 24 and 25 correctly state the law under the Act, which provides in part:
Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.
29 U.S.C. § 207(a)(1). 2 Civil damages are recoverable under 29 U.S.C. § 216(b): "Any employer who violates the provisions of section 6 or section 7 of this Act [29 U.S.C.S. §§ 206 or 207] shall be liable to the employee or employees affected in the amount of their ... unpaid overtime compensation ... and in an additional equal amount as liquidated damages." 29 U.S.C. § 216(b). FLSA claims can be brought in "any court of competent jurisdiction," including a state court. Freudenberg v. Harvey, 364 F.Supp. 1087, 1090 (E.D.Pa.1973)(citing 29 U.S.C. § 216(b)).
¶10 The purpose of the FLSA overtime provisions are two-fold: (1) to spread employment by imposing financial pressure on employers with strict requirements for overtime, and (2) to compensate employees who work more hours than allocated in the Act. Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 40, 65 S.Ct. 11, 13, 89 L.Ed. 29, 33 (1944); see generally White v. Witwer Grocer Co., 132 F.2d 108 (8thCir.1942). Courts must construe the Act liberally to aid its intended beneficiaries. Donovan v. Kaszycki & Sons Contractors, Inc., 599 F.Supp. 860, 867 (S.D.N.Y.1984).
¶11 An employee bringing an action for overtime wages must prove by a preponderance of evidence the work was actually performed. Reich v. Chez Robert, Inc., 821 F.Supp. 967, 972 (D.N.J.1993), vacated on other grounds 28 F.3d 401 (3rdCir.1994). Proof of the amount and extent of work performed may be inferred from the circumstances. Id. at 973; Dole v. Tony & Susan Alamo Foundation, 915 F.2d 349, 351 (8thCir.1990).
The employee must prove "that he has in fact performed work for which he was improperly compensated," id. at 687, 66 S.Ct. at 1192, and must produce "sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference," id. The employer must then come forward with evidence of the exact number of hours worked or with evidence to negate the reasonableness of the inference to be drawn from the plaintiff's evidence. Id.
Donovan v. Kentwood Development Co., Inc., 549 F.Supp. 480, 485 (D.Md.1982)(quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946)). An employee's recollection of hours worked may establish a prima facie case. Id. (citing, inter alia, Mumbower v. Callicott, 526 F.2d 1183 (8thCir.1975)).
¶12 Employees must produce, as noted above, sufficient evidence of hours worked. LaPorte v. General Elec. Plastics, 838 F.Supp. 549, 557-58 (M.D.Ala.1993). Here, Babinski did not require Graham to fill out time cards until July 1994, over a year after he began. When he started submitting time cards, Graham alleged they were not filled out by him in some instances, and, importantly, they were at odds with the calendar Graham kept contemporaneously with his daily responsibilities. Graham contended at trial his calendar notations were correct;...
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