Publix Overtime Lawsuit

The Publix Overtime Case

A Publix Overtime Lawsuit was recently filed against the retail superstore. On June 6th, a Publix manager allegedly said to an employee “if you complain about overtime again I’m going to fire you”. The employee stated that he had been working for the public for over 10 years and that he had only been making minimum wage. According to the employee, he was only making enough money to support himself and his two children. The defendant in this case is Publix and denies the claims in the Plaintiffs’ lawsuit. In its defense, it is Publix’s stand that all compensation due to its Associates were properly paid, including all overtime pay.

Publix Overtime Lawsuit

On August 6, the suit was served to Publix by their counsel, Matthew J. Deuling. He is a corporate vice president. He stated that on or about the date of the phone call at the above mentioned call center, the representative plaintiff spoke to a different person than he did previously and that during this phone call the alleged statement was made. Mr. Deuling explained that after he advised the store manager of the phone call that he thought the employee was referring to his supervisor, the manager did nothing to rectify the situation. Mr. Deuling further stated that upon learning of the attorney’s knowledge of the attorney’s role in assisting the plaintiffs, the store manager contacted him to advise that no action would be taken. Mr. Deuling further explained that at that point, he became the direct victim of unlawful retaliation and was subsequently subjected to numerous hours of extra work, despite having been fully reimbursed for the time he spent working at the call center on that particular day.

On September 5, the case was sent to a federal district court in Seattle.

The complaint name is objected to by the defendant. We noted in our initial blog that it is very likely the plaintiffs will be able to show motive, which would strengthen their case. Now, the complaint name is changed to Publix Supermarket, LLC. In an effort to avoid us reach conclusions on their behalf, the defendants have requested that an extended opt-in deadline is imposed on us.

As we have noted in our prior articles, we believe the claim should be allowed to proceed unless the defendants agree to our proposed discovery plan.

Assuming the defendants agree to our suggested discovery plan, the plaintiff must complete her discovery by October 1st, inclusive of an audiotape deposition of the manager, and obtain a written statement from the manager denying the charges against him. Assuming the defendants do not agree to our proposed discovery plan, the plaintiffs’ lawsuit will go forward. The complaint provides the specific facts of the case and a timeline of events. The complaint also identifies and describes various defenses. We expect the defendants will advance their defenses at this point as part of their routine discovery procedure.

We note that the complaint names the defendants individually and specifically refers to the Florida Department of Labor and the Florida Office of Workers’ Compensation (OWC) for purposes of identifying the complaint as a Class Action suit.

Although Florida has long required proof of discriminatory intent as a prerequisite for suing a defendant who is similarly situated, and Florida does require evidence of discriminatory intent, courts have held that, with few exceptions, plaintiffs may pursue a claim for injuries they sustain at the workplace without tying the causation of those injuries to the discriminatory intent of the defendants. To do so would be improper, because the state statutes of limitations apply only after the suit has been filed with the state court. Pursuant to Florida Statute, a Class Action lawsuit must be filed within three years of the date of the harm or injury, regardless of whether any damages have been recovered from the individual defendant. Similarly, based upon the Florida Workers’ Compensation Act, an employee who is injured on the job must file a claim with the Office of Workers’ Compensation within three years of the date of injury. Pursuant to the state statutes, if a complaint has been filed in a Circuit Court but has not been submitted to the state court within three years of the date of injury, the complaint must be filed with the Office of Workers’ Compensation.

The complaint was filed by Jose del Real, an individual residing in Jacksonville, Florida. Mr. del Real was a supervisor for Publix supermarkets located in Jacksonville. At the time of the incident, he was supervising employees on overtime and requested the immediate termination of four African-American employees, claiming that they were owed additional overtime pay. After discussing the matter with his supervisor, Mr. del Real requested that the case be turned over to the Florida Department of Employment Services (DFOS), which was to provide the employees with the additional overtime pay as ordered by the Florida OGG. Mr. del Real was not involved in negotiating the details of the settlement deal with the employer, but merely served as an agent representing the employee, who ultimately chose to file the overtime case in the Florida court.

The Florida State Court granted class action status to the case, holding that Mr. del Real’s supervisor, along with the other two defendants, knew that the employees were entitled to the overtime pay as ordered by the Florida Supreme Court, but did not take any action on this fact.

The court noted that there was last known contact information available for the defendants regarding the claims and noted that both defendants had requested that their last known contact information be kept confidential, but that the court had declined to do so. The court stated that because it could not reasonably be determined whether or not the defendants had any knowledge as to the claim, the class was comprised of all persons who had been potentially entitled to overtime as a result of the actions of their employers.

After reviewing the details of the Publix overtime case, the court found that the supervisor and the two other defendants in the case both had a duty to act in the best interests of the classes as a whole, and that they failed to do so. The court additionally found that as a result of their failure to act, the employees were similarly situated with each other, and that class members were entitled to receive overtime hours worked by each defendant, if the case had been allowed to continue. The court found that the trial court had erred in classifying the employees as members of a different class because of their employers’ failure to act according to an order of the Florida Supreme Court.

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