New Decision in FLSA Case
Tuesday, May 03, 2011

UPDATE --- May 6, 2011 from the Office of General Counsel on the:

• Original NATCA FLSA Lawsuit – Abbey v. USA – Filed May 1, 2007; and
• Second NATCA FLSA Lawsuit – Abdalla v. USA – Filed November 13, 2009

On May 4, 2011, Judge Hewitt issued a 45-page decision on some of the remaining issues in the pending FLSA cases. (In 2008, Judge Hewitt had ruled that the FAA was unlawfully maintaining compensatory time and credit hours programs in lieu of paying time-and-a-half pay for overtime work.) Although NATCA had anticipated that the judge would hold oral arguments on these remaining issues before rendering a decision, she exercised her judicial prerogative to proceed on these matters without doing so. The decision was a mixed-bag for the NATCA plaintiffs and also directed a trial on two issues that the judge chose not to resolve off of the parties’ motions.

In her new decision, Judge Hewitt ruled:

(1) that the FAA incorrectly calculated overtime pay to the detriment of the NATCA plaintiffs by excluding OSI and SCI payments made as lump sum payments and RTI payments (retention incentives) from the regular rate of pay used in the overtime calculation (although the judge also ruled that the FAA did not err in excluding Sunday premium pay and controller incentive pay from the regular rate of pay for the overtime calculation);

(2) that time spent by the NATCA plaintiffs bidding work schedules and vacation leave while off-duty does not constitute compensable work under the FLSA because it is an activity that primarily benefits the employee and is not undertaken for the benefit of the FAA;

(3) that disputed issues of fact remain as to whether or not the NATCA plaintiffs spent more than a de minimis amount of time performing compensable pre-shift and post-shift activities; and

(4) that the Court will address at trial the issue of damages for the NATCA plaintiffs (including the availability of liquidated damages and a recovery period extending back an additional year) with respect to its 2008 decision on the FAA’s unlawful maintenance of comp time and credit hours programs.

Attorneys for the NATCA plaintiffs are still reviewing and analyzing the judge’s decision, but they are also preparing a trial plan for the damages issue and the pre-shift/post-shift activity issue.  NATCA is currently uncertain as to what dates the Court will select for the trial, but a trial may not occur until near the end of this year or beginning of next year.

The NATCA Office of General Counsel will issue another update as soon as additional information becomes available.

Click here to view the decision in PDF form.

* A word document of this update, as well as the decision PDF, is also available on the Current Issues page of the Members' site.