United States District Court, E.D. Michigan, Northern Division
R. ALEXANDER ACOSTA Secretary of Labor, United States Department of Labor Plaintiff,
TIMBERLINE SOUTH LLC, a Michigan limited liability company, and JIM PAYNE, an individual, Defendants.
Patricia T. Morris
ORDER DENYING DEFENDANTS' MOTION FOR
L. LUDINGTON, UNITED STATES DISTRICT JUDGE
April 29, 2016, Plaintiff Secretary of Labor filed a
complaint against Defendants Timberline South LLC, a timber
felling concern, and its manager Jim Payne, alleging
violations of the overtime and recordkeeping provisions of
the Fair Labor Standards Act of 1938. The parties filed cross
motions for summary judgment. On October 6, 2017, the Court
entered an order denying Defendant's motion for summary
judgment, granting Plaintiff's motion for summary
judgment in part as to the issues of liability and liquidated
damages, and ordering supplemental briefing on damage
calculation. On October 20, 2017, Defendants filed a motion
for reconsideration of the Court's conclusion that
Defendants are liable for liquidated damages under the FLSA.
to Eastern District of Michigan Local Rule 7.1(h), a party
can file a motion for reconsideration of a previous order,
but must do so within fourteen days. A motion for
reconsideration will be granted if the moving party shows:
“(1) a palpable defect, (2) the defect misled the court
and the parties, and (3) that correcting the defect will
result in a different disposition of the case.”
Michigan Dept. of Treasury v. Michalec, 181
F.Supp.2d 731, 733-34 (E.D. Mich. 2002) (quoting E.D. Mich.
LR 7.1(g)(3)). A “palpable defect” is
“obvious, clear, unmistakable, manifest, or
plain.” Id. at 734 (citing Marketing
Displays, Inc. v. Traffix Devices, Inc., 971 F.Supp.2d
262, 278 (E.D. Mich. 1997). “[T]he Court will not grant
motions for rehearing or reconsideration that merely present
the same issues ruled upon by the Court, either expressly or
by reasonable implication.” E.D. Mich. L.R. 7.1(h)(3).
See also Bowens v. Terris, 2015 WL 3441531, at *1
(E.D. Mich. May 28, 2015).
U.S.C. §216(b) of the FLSA provides that an employer who
violates section 206 or 207 shall be liable for liquidated
damages in an amount equal to the unpaid overtime
compensation. 29 U.S.C. §216(b). However,
If the employer shows to the satisfaction of the court that
the act or omission giving rise to such action was in good
faith and that he had reasonable grounds for believing that
his act or omission was not a violation of the Fair Labor
Standards Act of 1938, as amended, the court may, in its
sound discretion, award no liquidated damages or award any
amount thereof not to exceed the amount specified in section
216 of this title.
29 U.S.C. § 260.
employer bears the substantial burden of establishing this
affirmative defense. Dole 942 F.2d at 968 (6th Cir.
1991). The employer must show both a subjective
belief that it was compliant with the FLSA as well as an
objectively reasonable basis for that belief. See Samson
v. Apollo Res., Inc., 242 F.3d 629, 640-41 (5th Cir.
2001); Elwell v. Univ. Hosps. Homecare Servs., 276
F.3d 832, 841 (6th Cir. 2002). To show subjective good faith,
an employer must show “an honest intention to ascertain
and follow the dictates of the act.” Martin v.
Cooper Elec. Supply Co., 940 F.2d 896, 908 (3d Cir.
1991) (citing Williams v. Tri-County Growers, Inc.,
747 F.2d 121, 129 (3d Cir. 1984) (abrogated on other
employer who acted negligently, but not wilfully, in
misclassifying an employee will not be able to satisfy the
good faith or reasonableness requirements. See id.;
Elwell, 276 F.3d at 842. An employer must take
affirmative steps to ascertain the Act's requirements.
Martin v. Indiana & Michigan Power Co., 381 F.3d
574, 584 (6th Cir. 2004). An employer may, but is not
required to, rely on the advice of legal counsel provided
that counsel is fully informed about the roles of all
potentially exempt employees, counsel provides advice that is
reasonable, and the employer adheres strictly to that advice.
Townley v. Floyd & Beasley Transfer Co., 1989 WL
205342, at *4 (N.D. Ala. Dec. 8, 1989); Cook v. Carestar,
Inc., 13 WL 5477148, at *12 (S.D. Ohio Sept. 16, 2013).
order dated October 6, 2017, the Court found Defendants
liable for liquidated damages and noted as follows:
Defendants' single inquiry to Timberline's
accountant falls well short of meeting this burden. Mr.
Rooyakker's advice was at most an opinion with respect to
the general applicability of the Agricultural Exemption to
Timberline's operations. Rooyakker Tr. at 61-62. Mr.
Payne could not reasonably rely on that opinion with respect
to all employees performing varying duties including
administration and transportation. Mr. Payne made no follow
up inquiry to ...