San Diego loses bid to have suit over overtime pay dismissed

By Takesha Thomas | Aug 7, 2018

SAN DIEGO – The city of San Diego recently lost bid to have a civil case alleging violations of the Fair Labor Standards Act (FLSA) tossed by the U.S. District Court of Southern District of California.

SAN DIEGO – The city of San Diego recently lost bid to have a civil case alleging violations of the Fair Labor Standards Act (FLSA) tossed by the U.S. District Court of Southern District of California.

City employees Gary Mondesir and David Kries sued the city alleging violations of the FLSA. The men claim that they were not paid overtime pay for several years despite working more than 40 hours per week. Their suit claims San Diego failed to pay correct overtime premiums because it failed to include in its regular-rate-of-pay calculation “all remuneration for employment paid to, or on behalf of” plaintiffs.

“The FLSA sets a national minimum wage ... and requires overtime pay of one and a half times an employee’s hourly wage for every hour worked over 40 hours in a week,” according to court documents. 

San Diego then filed a motion to dismiss the case.

Rather than oppose the motion, court documents state that attorneys for Mondesir and Kries instead, "responded by filing the now operative amended complaint." 

In the amended complaint, Mondesir and Kries alleged that they worked more than 40 hours per week during many seven-day work weeks. Specifically, the Amended Complaint alleges that, "Mondesir worked more than 40 hours in 140 work weeks since July 19, 2014," and  "Kries worked more than 40 hours in at least 75 work weeks since July 19, 2014." 

San Diego claims that attorneys for Mondesir and Kries “provide no factual content whatsoever in regard to their city employment ... such as their positions, duties, hours of work, etc.” in the amended complaint. "This makes it impossible ... to determine based solely on the amended complaint, whether plaintiffs are engaged in work that would fall under any of FLSA’s exemptions," they argued.

In his July 18 ruling, U.S. District Judge Gonzalo Curiel denied the city's motion to dismiss. "The factual allegations in the amended complaint state a plausible violation of the FLSA, and the city’s motion to dismiss is not an appropriate vehicle to invoke § 207(k)’s exemption for law enforcement officers or the issue of plaintiffs’ typicality of the putative class," the ruling said.

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