FLSA Suit Update

July 6, 2009 Update on FLSA Suit and FAA's May 1 Memo Concerning Retroactive FLSA Payments:

On July 2, 2009, the federal judge presiding over the FLSA suit filed on behalf of over 7,000 NATCA members issued a ten-page order in which she held that the FAA acted improperly with regard to the Agency's May 1, 2009 memo concerning retroactive FLSA payments to the NATCA plaintiffs. The FAA's May 1 memo informed NATCA members who are also plaintiffs in the pending litigation that the FAA planned to remedy the Agency's previous miscalculations of overtime pay to certain employees whose holiday pay and non-foreign area cost of living allowances (COLA) were not properly factored in to the overtime calculations.

Because claims involving the proper calculation of overtime rates involving COLA are included in the current FLSA suit, counsel for the NATCA plaintiffs objected to the Agency's course of action as detailed in the May 1 memo. Counsel for the NATCA plaintiffs argued to the Court that the Agency violated the Model Rules of Professional Conduct by communicating directly with the NATCA plaintiffs, instead of through their legal representative, about matters that are included in the suit. In a motion to the Court, counsel for the NATCA plaintiffs also contested the Agency's intent to provide retroactive back pay without accompanying individual calculations for the amounts received and without interest or liquidated damages.

In her opinion, Judge Emily Hewitt agreed with the arguments put forth on behalf of the NATCA plaintiffs and held that the FAA violated the Model Rules of Professional Conduct which are applicable to the conduct of attorneys involved in proceedings in the United States Court of Federal Claims.

Judge Hewitt ordered the Agency to cease all communications with plaintiffs concerning the subject of the suit, to make all retroactive FLSA payments involving any claims at issue in the suit through counsel for the NATCA plaintiffs, and to accompany all payments with a detailed calculation documenting the exact amount paid to each plaintiff and how that amount was calculated on a pay period by pay period basis.

For any retroactive FLSA payments involving claims at issue in the suit that the Agency made prior to the Court's July 2 Order, the Court ordered the Agency to provide the amount and date of each payment, the name of the plaintiff to whom the payment was made, and a detailed calculation for the payment to counsel for the NATCA plaintiffs by 5:00 p.m. EDT on Monday, July 6.

Finally, the Court also ordered the FAA to ensure that former FAA employees who are plaintiffs in the suit are considered by the FAA to have requested the payments described in the May 1 memo and nullified the FAA's requirement that such plaintiffs respond to the memo within 60 days.

I will provide additional information about the FAA's compliance with the July 2 Order as it becomes available.

Marguerite L. Graf
General Counsel
National Air Traffic Controllers Association, AFL-CIO
(202) 220-9828 phone
(202) 628-5767 fax