Legal Docket: Overtime pay and who should get it

MARY REICHARD, HOST: It’s Monday, October 31st and this is The World and Everything in It from listener-supported WORLD Radio. So glad you’ve joined us today! Good morning. I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

The Supreme Court is back today after a two week break from oral arguments. We’ll use today to catch up on some arguments from earlier this month.

First, overtime pay and who should get it.

The Fair Labor Standards Act requires employers to pay certain employees time and a half. That is, for the hours they work beyond a 40-hour workweek. Certain jobs such as ones that are mostly supervisory or administrative are exempt from the overtime-pay requirement.

REICHARD: Our case today involves a man named Michael Hewitt. He worked on an offshore oil and gas rig managing other employees. He worked 12 hour days, 28 days in a row, then got 28 days off. For that, he was paid a daily rate.

After Hewitt was fired for a performance issue, he sued for retroactive overtime pay.

But employer Helix Energy Solutions Group says it doesn’t owe him a thing. It points to the law’s language to back it up: “highly compensated employees” are exempt from overtime pay.

At the Supreme Court, Helix lawyer Paul Clement emphasized Hewitt’s substantial salary of more than $200,000 a year.

CLEMENT: Respondent nonetheless insists that he's entitled to hundreds of thousands of dollars in overtime because his substantial pay was calculated based on a day rate and, in many weeks, his total compensation was much larger than his guaranteed pay…

But Hewitt counters what’s relevant is the manner in which he was paid. Not how much.

Hewitt’s lawyer at the Supreme Court was Ed Sullivan and he emphasizes provisions of the Fair Labor Standards Act, which you’ll hear him refer to by the initialism FLSA.

SULLIVAN: For over 80 years, the FLSA has made two things clear: One, a bona fide executive must be paid on a salary basis, and, two, a pure daily rate employee is not paid on a salary basis. The highly compensated employee regulation requires payment on a salary basis.

So that’s what the justices must decide: whether a supervisor who makes over $200,000 a year, calculated on a daily basis, is entitled to overtime pay, despite an exception in the law for highly paid executives?

Justice Ketanji Brown Jackson seemed to side with the employee:

JACKSON: What he has to know is how much is coming in at a regular clip so that he can get a babysitter, so that he can hire a nanny, so that he can pay his mortgage. It's about, I think, the predictability and the regularity of payment.

Justice Clarence Thomas observed what most people probably believe about pay:

THOMAS: For the average person looking at it, when someone makes over $200,000 a year, they normally think of that as an indication that it’s a salary. And not -- then you certainly don't normally think of someone making $200,000 a year as a day laborer. And so that's -- you – you've got this ill fit. If you were talking about $20,000 a year, you would be -- people would say that makes sense.

Justice Brett Kavanaugh pointed out a conflict between the Labor Department’s regulations and the statute it’s supposed to carry out.

Surely, someone’s already litigated this?

KAVANAUGH: I’m just saying, if it’s not here, if the statutory argument is not here, I'm sure someone is going to raise it because it's strong.

CLEMENT: Well, you just asked about it, so somebody definitely will raise it now – (Laughter.) -- if they weren't -- if they weren't already.

Employer Helix warns that if former employee Hewitt wins, the courts can expect a flood of lawsuits so that people who already earn a lot of money will get a whole lot more.

Alright, on to our second argument today, Reed v Goertz.

Rodney Reed was sentenced to die for raping and murdering Stacey Stites in Texas in 1996.

He claims he is innocent. For years, he’s sought to have DNA testing on an item from the crime scene that could prove his innocence.

Supreme Court precedent says it’s fine for a state to give inmates the right to prove innocence through new DNA evidence. But if they do, the procedures for that testing must be fair.

Texas does permit DNA testing post-conviction. But Reed doesn’t get to because he missed the state’s two-year filing deadline.

So he now challenges that deadline as unfair.

At the Supreme Court, his lawyer underscored the inconsistent way that Texas handles time limitations.

When is the clock supposed to start? When the state trial court denies DNA testing? Or not until the inmate exhausts his appeals?

Reed argues the clock doesn’t start running until all state appeals are over. That would give him more time.

Justice Sonia Sotomayor brought that up with lawyer for Texas, Solicitor General Judd Stone:

SOTOMAYOR: You're – you're claiming he -- he was dilatory, but putting all of that aside, your -- you still maintain that there's some practical importance to not letting him -- not exhaust, but go through a pending appellate process?

STONE: He may, Your Honor, if he wishes. But if he's already suffered a constitutional violation --

SOTOMAYOR: -- now the federal court should wait or not wait?

STONE: It need not, Your Honor. It need --

SOTOMAYOR: But it can?

STONE: If parties request that it wait, that would be --

SOTOMAYOR: That --seems like an awful waste of time.

Stone later argued this is about inmates dragging things out to delay execution. But the justices did not seem sympathetic to that argument.

Part of the reason is that a prior execution date for Reed was called off because of evidence pointing to someone else as the killer of Stacey Stites. Namely, the victim’s fiance, police officer Jimmy Fennell.

Reed’s lawyer, Parker Rider-Longmaid, explained.

LONGMAID: Mr. Reed has a stay of execution from the Texas courts on his ninth subsequent habeas petition before the courts where he raised evidence that Fennell admitted to killing Stites because he discovered she was sleeping with a black man, that Fennell threatened to kill Stites if he caught her cheating, that Fennell made inculpatory statements at Stites' funeral and that Fennell and Stites' relationship was fraught.

Given all that, Longmaid argued, delay can’t be the only point; it’s that it’s possible his client is innocent. So why not just test for the DNA and remove the doubt?

Okay, the last argument involves another dispute over filing deadlines.

Here, the facts center around a Navy aircraft carrier that crashed into a merchant vessel four decades ago. Sailor Adolfo Arellano witnessed death and injury to other people as he was nearly crushed and swept overboard. He developed severe mental health problems and was honorably discharged after four years of service.

Arellano eventually filed for disability benefits, but not until thirty years had gone by. He says his disability kept him from understanding what he needed to do.

The general rule is a veteran may file for disability benefits at any time. But if he does so more than a year after discharge, he can only get money from the date he filed.

So Arellano challenges that rule as unfair.

At the Supreme Court, Arellano’s lawyer, James Barney:

BARNEY: We expect this to be something that's applied sparingly, but in the cases where it's truly deserving, and for veterans who truly do deserve consideration of an equitable tolling claim, it ought to be available.

Barney pointed out that extenuating circumstances lead to pausing other sorts of deadlines. So why not here? That’s what “equitable tolling” is for.

On the other side for the government, Assistant to the Solicitor General Sopan Joshi argued that year-long window isn’t really a statute of limitations. It’s just a guideline so veterans can get compensated more quickly.

JOSHI: If Congress doesn't speak in that language, then there's no basis for that inference.

… here’s what he means to say: that the law Congress wrote speaks of exceptions, and this particular one isn’t called an exception.

Chief Justice Roberts just wasn’t following:

ROBERTS: I'm not sure which way your emphasis on the 16 exceptions really cuts. I mean, if there's 16 exceptions to the rule, that kind of suggests to me that the insistence upon strict enforcement is really not that important.

Arellano stands to get more than $600,000 should he win. Before that happens, though, his case has to be returned to the VA for more fact finding.

However this one comes down, it’ll affect at least one case on hold right now waiting for the outcome: the Edgewood Veterans. These are service members who signed secrecy agreements before getting injured in secret operations. The army used them to test chemical and biological agents. They, too, seek disability benefits through the concept of equitable tolling.

And that’s this week’s Legal Docket.

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