The FLSA overtime case filed on behalf of 704 current and former Vermont state employees is before the United States Court of Appeals for the Second Circuit in New York. The case, known as Sheila Coniff et al., on behalf of themselves and those similarly situated v. State of Vermont et al., Docket No. 13-4198-cv, (2d Cir.), challenges the state’s practice of providing straight time overtime instead of time and one half overtime to employees once they reach pay grade 23.  The class of employees are from the corrections, judiciary, non-management and supervisory bargaining units.  All parties have fully briefed the case and oral argument in New York City should take place later this Fall.  Thereafter the Court will issue a decision.  Once we receive notice of the date and time for oral argument we will post that information so that state employees can attend if they wish.  Tom Somers, lead counsel for the class, says he welcomes any state workers to join him at the argument.

The federal court in Burlington ruled that the State was immune from suit under the Fair Labor Standards Act because of an ancient legal doctrine known as sovereign immunity.  In other words, the State argued that it was above the law that private employers must obey, and the trial court agreed.  The trial court also ruled that the state employees were “salaried”, which is required for an employee to be exempt from overtime, despite the fact that employees are not paid unless they work or have accrued leave, all earned on an hourly basis. Somers says, “We are optimistic about our chances with the Second Circuit. While I have high regard for Judge Sessions who ruled against us in the trial court, his ruling contains many legal mistakes which we believe the Second Circuit will not make.”

If anyone would like an electronic copy of the briefs filed by the parties in the 2d Circuit, please contact Kathy Bonilla in Somers’ office at 802-863-1191 or by email at kbonilla@bpflegal.com.