Cleveland County overtime pay dispute could head to trial in November 2024 | Eastern North Carolina Now

A federal class-action lawsuit led by a Cleveland County Emergency Services Worker could head to trial in November 2024. Sixteen plaintiffs to date are challenging the pay schedule the county used from 2015 to 2017.

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    A federal class-action lawsuit led by a Cleveland County Emergency Services worker would head to trial in November 2024, under a schedule released this week. If successful, current and former employees could collect back pay in the dispute involving overtime.

    US Chief District Judge Martin Reidinger determined in April that plaintiff Sara Conner could proceed with her potential class-action case. Reidinger denied Cleveland County's motion to dismiss the case.

    The judge noted that the total number of plaintiffs in the case could top 100. Since his ruling, 15 other Cleveland County employees have signed on to join Conner.

    A scheduling order issued Wednesday calls for designation of a mediator in the case by Sept. 8. Discovery in the case would be complete by May 2024, with all motions filed by June. A trial would follow as early as Nov. 12, 2024.

    The suit filed in 2018 contends that Cleveland County violated federal law and breached its contracts with employees by failing to pay them correctly for overtime work.

    In weeks when Conner worked overtime, the county EMS reduced her regular rate of pay, she argued. The pay structure created "overtime gap time." Conner is suing to recover lost wages.

    The trial court initially ruled in favor of the county in August 2019. But the 4th U.S. Circuit Court of Appeals revived the case in January 2022. Appellate judges ruled that Conner had made a claim connected to the federal Fair Labor Standards Act that could move forward.


    Reidinger signaled in April that he still has doubts about Conner's prospects for winning her case.

    "Ordinarily, the existence and terms of a contract would be questions of law for the Court," he wrote. "The Plaintiff asserts that the relevant contract of the parties between 2015 and 2017 is embodied entirely in the [county's] Ordinances" and was applied correctly only as of Jan. 1, 2018.

    "The Plaintiff's allegations as to both the existence of such contract and its proper interpretation are very thin," Reidinger wrote. "On this record the Court can make no conclusions as to either. However, applying the 'fairly lenient' standard at this early stage, particularly considering the direction of the Court of Appeals to determine whether the Plaintiff and the putative class of 'employees are paid all of their straight time wages first under the relevant employment agreement,' the Court will not dismiss the matter due to the meager plausibility of the Plaintiff's allegations. Such questions are best left for summary judgment, or if appropriate, for the jury."

    The case had attracted national attention. Cleveland County appealed the 4th Circuit's 2022 ruling to the US Supreme Court. Sixteen state governments filed a brief supporting the county's request. So did groups called the International Municipal Lawyers Association and the New Civil Liberties Alliance.

    The high court decided in December not to take the case.

    Critics argued that 4th Circuit judges had misused a legal doctrine known as "Skidmore deference."

    "It's a concept so often repeated that it may strike as a truism: When construing a statute, a court must start with the text," opened a friend-of-the-court brief at the Supreme Court from West Virginia Attorney General Patrick Morrisey. "But courts still sometimes can't resist the temptation to ignore the words on the page to reach desired ends."

    "[T]he decision below is one more example of that mistaken indulgence," Morrisey argued. "The Court should use this case to remind all courts that the tried-and-true lesson of statutory construction still holds. Text reigns."


    Morrisey critiqued the 4th Circuit's "overreliance" on deference to the U.S. Department of Labor's interpretation of federal law. Judges reached "a result that the text of the Fair Labor Standards Act cannot sustain," he wrote.

    "The court below recognized that the Act does not 'include language' permitting employees to recover for 'overtime gap time,'" according to the brief. "Yet the court marched ahead anyway - repeatedly relying on its own conception of the FLSA's 'purpose' to fashion a new remedy without a statutory hook."

    "Perhaps worse still, the Court further applied something approaching blind deference to the Department of Labor's spin on the statute even while recognizing that the 'only other circuit' to 'squarely address' this question gave no deference to that regulation precisely because it found 'no statutory support,'" Morrisey added.

    Attorneys general from Alabama, Alaska, Arkansas, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Oklahoma, South Carolina, Texas, and Utah signed onto the West Virginia brief.

    The New Civil Liberties Alliance also criticized the 4th Circuit's approach.

    "NCLA is particularly disturbed by the Fourth Circuit's decision to grant 'considerable deference' to the U.S. Department of Labor's non-binding interpretation of the Fair Labor Standards Act without undertaking the basic step of determining whether that interpretation is consistent with the statutory language," NCLA attorneys wrote. "The Fourth Circuit exhibited an all-too-frequent tendency among lower courts 'to defer to the interpretive views of executive agencies, not as a matter of last resort but first.'"

    "Skidmore deference" refers to a court precedent from 1944.

    "The shorthand 'Skidmore deference' is somewhat of a misnomer because Skidmore v. Swift and Co. does not allow a court to truly defer, i.e., subordinate its independent judgment, to an agency's non-binding interpretation of law," the NCLA brief argued. "Rather, non-binding interpretations 'are "entitled to respect" [under Skidmore], but only to the extent that they are persuasive.'"

    The Supreme Court "unfailingly" subjects Skidmore cases to judicial analysis, NCLA asserted.

    "Lower courts do not uniformly apply Skidmore in this manner," according to the brief. "Some follow this Court's independent judgment approach and accept only non-binding agency interpretations that they deem persuasive. Many others, however, subordinate their own judicial judgment in favor of agencies' views based on the mistaken belief that Skidmore commands deference rather than respect."

    The US Department of Labor believes "unpaid gap time" violates the Fair Labor Standards Act. The 4th Circuit granted the department "considerable deference," without analyzing the law or making any kind of finding about whether the department's interpretation proved persuasive.


    But a 2013 case from the 2nd Circuit came to an opposite conclusion. Appellate judges in that dispute considered similar facts and found the Labor Department's interpretation unpersuasive.

    Now that the U.S. Supreme Court has rejected the Conner case, the 2nd and 4th federal circuits will maintain contrasting approaches to the Skidmore precedent.
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