Butler Williams & Skilling Blog

Overtime Cases Certified for Notice in Timeshare Sales and Cable Installer Cases

On Monday, June 14, 2010, a federal magistrate judge ordered that notice of pending overtime lawsuits be issued to former employees of two Virginia employers who have been sued for failure to pay overtime and minimum wages required by federal labor law.  

In Kisamore, et al v. Great Eastern Resort Corporation, Case No. 3:10cv00009, pending in the United States District Court in Charlottesville, Virginia, the Court ordered that notice be issued to all current and former timeshare "front-line" and "in-house" sales employees, as well as to "take-over managers" who also participate in the sales process, employed by GERC at its Massanutten Resort for the past three years.  Massanutten, located in McGaheysville, Virginia, is nestled in the Blue Ridge mountains, overlooking the Shenandoah Valley.  The Plaintiffs, and the group of sales personnel they seek to represent, sold timeshare packages at the resort. 

The timeshare industry has typically not paid timeshare sales personnel overtime or minimum wage compensation, taking the position that their salespersons are exempt from overtime and minimum wage protections of federal law.  A number of lawsuits filed against timeshare resorts have challenged this treatment, seeking protection for minimum wage payments in weeks in which no sales commissions are received (and minimum wage payments were often not paid) and for overtime compensation for hours worked in excess of 40 hours per week.  Four former sales personnel filed this case, seeking collective action treatment, a form of opt-in "class" action unique to claims brought under the Fair Labor Standards Act (FLSA).  Other employees have filed "opt-in" consents to join the case. 

The Court also ordered that the employer provide the names and addresses of former and current employees who have worked at the resort for the past three years to Plaintiffs counsel, Butler Willaims & Skilling, P.C. and Cupp & Cupp, P.C., so that the Court approved notice may be sent to these employees who may be entitled to damages in the suit.  Notice is expected to be sent to such former and current employees by July 1, 2010.

In Addison, et al v. McLaughlin Communications, Inc., Case No. 5:09-cv-00087, pending in the United States District Court in Harrisonburg, Virginia, the Court ordered that notice of this suit be issued to all current and former McLaughlin cable installation technicians who were employed in Virginia, West Virginia and Pennsylvania from August 10, 2005 to date.  McLaughlin is a contractor of Comcast and performs cable installation and service for Comcast customers.  The suit alleges that McLaughin failed to pay its technicians overtime pay due under the FLSA. 

Federal overtime laws allow for the recovery of unpaid overtime and minimum wage for a two year period of time, in addition to a like amount of "liquidated" or double damages, where the employer has not paid overtime or minimum wage when due.  Employees may recover unpaid overtime/minimum wage compensation and liquidated/double damages for three years in the cases of willful violations.  In the Addison case, the Court allowed notice for a five year period of time because the plaintiffs sought equitable tolling (or suspension) of the normal 2 or 3 year limitations periods which otherwise apply in such cases.  The plaintiffs allege that the longer 5 year liability period should apply because McLaughlin created and issued pay stubs to employees that reflected overtime rates of pay and additional overtime payments for hours worked over 40 in a workweek when such additional overtime payments were not actually paid as required by law.  The Court allowed a longer notification period for possible claimants, dating back to August 10, 2005.  Notice is expected to be sent to former and current employees by July 1, 2010.