Summaries of Selected Opinions, 1118 COBJ, Vol. 47, No. 10 Pg. 88

Position::Vol. 47, 10 [Page 88]

47 Colo.Law. 88

Summaries of Selected Opinions

Vol. 47, No. 10 [Page 88]

The Colorado Lawyer

November, 2018


No. 17-4111. Acosta v. Foreclosure Connection, Inc. 8/15/2018. D.Utah. Judge Lucero. Overtime Wages—Fair Labor Standards Act—Enterprise Engaged in Commerce—Prohibition on Retaliation.

Foreclosure Connection, Inc. (FCI) buys real estate, renovates homes, and rents or resells properties. Based on a complaint filed by two FCI workers, the Department of Labor (DOL) investigated FCI for failing to pay overtime wages to its construction workers. When FCI received notice of the complaint, it held a meeting with its workers and instructed the group to refuse to cooperate with DOL's investigation. FCI had its workers sign "independent contractor agreements," but instructed them to leave the agreements undated, and told them to claim they could not remember when they signed. FCI fired the two employees who had instigated the investigation. FCI submitted the agreements to DOL, including an agreement for one of the fired workers that appeared to have a forged signature. DOL sued FCI and its manager, alleging that FCI had obstructed its investigation and retaliated against its employees. Following a bench trial, the district court issued a permanent injunction barring retaliation and obstruction, and awarded back pay and liquidated damages to the two employees who had complained.

On appeal, defendants argued that DOL failed to demonstrate that FCI was an enterprise engaged in commerce. Under the Fair Labor Standards Act (FLSA), employees are entitled to overtime pay if they work more than 40 hours per week and are employed in an enterprise engaged in commerce. After reviewing authorities from other circuits, the Tenth Circuit held that FLSA's prohibition on retaliation applies to any person regardless of whether that person is an enterprise engaged in commerce.

Defendants also contended that the district court clearly erred in finding a causal connection between the two terminated employees' protected activity and their termination. Here, the record contains direct evidence that the employees were fired because of their DOL complaints. Further, the district court could permissibly infer pretext because of the inconsistent reasons provided for the terminations.

The judgment was affirmed.

No. 17-1013. DISH Network L.L.C. v. Ray. 8/21/2018. D.Colo. Judge Seymour. Arbitration—Employment Agreement—Class and Collective Claims—Arbitrator's Decision on Arbitrability—Manifest Disregard of Law—Arbitrator Did Not Exceed Powers.

Ray was a sales associate for DISH Network L.L.C. (DISH). While he was employed, he signed an arbitration agreement (the Agreement) that DISH drafted. After DISH terminated his employment, Ray filed suit in federal court alleging that DISH had violated various laws pertaining to wages. DISH demanded arbitration, so Ray dismissed his lawsuit and filed with the American Arbitration Association asserting the same claims. In addition, he sought to pursue his claims as a class action and a collective action. The arbitrator...

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