Third Circuit Strikes Down Philadelphia Trademark Claim

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In July 2017, the Third Circuit ruled against Appellant Parks, LLC (“Parks”) in its false association trademark claim against Tyson Foods, Inc. and Hillshire Brands Company (collectively “Tyson”). Parks, LLC v. Tyson Foods, Inc., 863 F.3d 220 (3d Cir. 2017). Parks manufactured sausage under the brand name “Parks,” taken from the founder’s surname, from the 1950s until 2000 when it entered into a licensing agreement with Dietz and Watson, a Philadelphia based producer of delicatessen meats. Dietz and Watson, as well as Super Bakery, Inc., has continued to make and sell Parks branded products since partnering in 2000. In 2014, Tyson introduced a line of frankfurters under their trademarked “Ball Park” line called “Park’s Finest.” In 2015, Parks filed suit against Tyson for false association, among other claims, in the District Court. The trial court granted Tyson’s motion for summary judgment, and the Third Circuit affirmed.

To make a successful false association claim, a plaintiff must prove that “(1) the marks are valid and legally protectable; (2) the marks are owned by the plaintiff; and (3) the defendant’s use of the marks to identify goods or services is likely to create confusion concerning the origin of the goods or services.” A mark can be valid and legally protectable if it is either inherently distinctive or achieves secondary meaning. Since trademarks based on a surname are not inherently distinctive, Parks argued that “Parks” has a secondary meaning which occurs when “the mark is interpreted by the consuming public to be not only an identification of the product or services, but also a representation of the origin of those products or services.” In order to evaluate if “Parks” has a second meaning, the Court examined factors including the extent of advertising, length and exclusivity of use, evidence of copying, customer surveys, size of the company and number of sales and customers, and actual confusion.

While Parks could show that it had a long history and exclusivity of use of “Parks,” considering its nearly 60-year history of using the mark, it was unable to prove the other factors. First, Parks could not show that there was recent evidence of extensive advertising sufficient to create a mental association between the mark and the product because their product was merely advertised locally. Second, Parks could not prove that Tyson purposefully copied the “Parks” brand. Third, Parks was unable to show that there was brand confusion using a Squirt survey, in which participants are asked questions about the products in the claim alongside control products to see if there is confusion. Here, the survey did show consumer confusion; however, the Court rejected the results as the participants were primed to find these products to be similar amongst the varied control products. Finally, Parks’ minimal sales compared to Tyson’s large presence in the national market lends to the conclusion that “Parks” did not have a second meaning because people more likely associate the mark with the larger Tyson and historically have not actually confused the two brands as evidenced through extensive discovery.

Even though the Court recognized Parks’ long history and exclusivity of the “Parks” mark, it found that Parks’ false association claim could not continue in the face of its lack of advertising, its “miniscule market share,” and its lack of brand confusion.

For more information, please call our Philadelphia Trademark Lawyers at Sidkoff Pincus & Green at 215-574-0600 or submit an online inquiry.

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Eastern District PA Court Finds Sites Reviewing Products are not Engaged in Commercial Speech

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On May 4, 2018 the United States District Court for the Eastern District of Pennsylvania held that certain websites that engage exclusively in reviewing consumer goods are not engaged in “commercial speech” and are not in violation of trademark law. GOLO, LLC v. HighYa, LLC, No. CV 17-2714, 2018 WL 2086733, at *1 (E.D. Pa. May 4, 2018). Plaintiff GOLO owns and operates a weight loss program which had been reviewed on both Defendants, HighYa and BrightReviews, websites. Plaintiff alleged that the reviews posted by Defendants and consumers on their sites were fraudulent and harmed its business. Neither Defendant sells any goods from their sites and both derive most, if not all, of their revenue from web traffic and advertisements on their sites. Plaintiff brought a claim for false advertising and trademark infringement under the Lanham Act as well as state law libel and unfair competition claims.

The Eastern District dismissed Plaintiff’s claims based upon the fact that Defendants did not engage in commercial speech. The court explained that to sustain a claim under the Lanham Act regarding issues of false advertising or false association it is required that such speech made be commercial. To identify if speech is commercial a court must decide “whether the speech (i) is an advertisement, (ii) refers to a specific product or service, and (iii) whether the speaker has an economic motivation for the speech.” Id. The main dispute was whether prongs (i) and (iii) were met by way of Defendants’ online reviews. Relying on a decision in the Eleventh Circuit, the Court reasoned that although Defendants were economically benefitted by consumers trafficking their sites and reviews, “the financial benefit is merely incidental to the content of the reviews.” Defendants did not directly make recommendations regarding Plaintiff’s program. Further Plaintiff could not cite to specific evidence of how Defendants’ reviews directly and negatively harmed business.

The Court went on to dismiss the trademark infringement or false association claim on the grounds that Plaintiff had not sufficiently alleged that Defendants’ use of Plaintiff’s name was “likely to cause consumer confusion.” The trade libel claim and unfair competition claims were dismissed due to such claims being time-barred and Plaintiff inadequately pleading falsity. The Motion to Dismiss on behalf of both Defendants was granted.

For more information, please call our Philadelphia trademark lawyers at Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

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Third Circuit Affirms Denial of Injunction Blocking Transgender Bathroom Policy

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The Third Circuit Court of Appeals affirmed the denial of a preliminary injunction that would prohibit a school district from continuing its practice of allowing transgender students to use the bathroom and locker rooms of the sex by which they identify. Doe by & through Doe v. Boyertown Area Sch. Dist., No. 17-3113, 2018 WL 2355999, at *1 (3d Cir. May 24, 2018). The claim was brought by parents of several cisgender students who claimed that such policy of the Boyertown Area School District violated their Fourteenth Amendment right to privacy, their right to access to educational opportunities, programs, and benefits, and their Pennsylvania common law right to privacy preventing intrusion while using bathrooms and locker rooms. Doe by & through Doe v. Boyertown Area Sch. Dist., 276 F. Supp. 3d 324 (E.D. Pa. 2017), aff’d, No. 17-3113, 2018 WL 2355999 (3d Cir. May 24, 2018). The policy had been implemented since the beginning of the 2016-17 academic year, the plaintiffs sought the school district return to the prior policy requiring students to use any private facilities associated with their biological sex assigned at birth.

After reviewing the testimony of the students whose parents brought the complaint, testimony from a transgender student at the Boyertown Area Senior High School, and testimony from Dr. Scott Leibowitz, an expert in gender dysphoria and gender identity issues in children and adolescents, the trial court denied the motion for preliminary injunction. The court concluded that the plaintiff students “did not have a constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs.” Much of the emphasis by the court was predicated on the fact that the plaintiffs, if they were uncomfortable sharing private facilities under the policy, could have used private stalls or an alternative facility like the nurse’s office.

The plaintiffs failed to meet the “particularly heavy burden” of showing they were entitled to the preliminary injunction as they did not seek a return to the status quo but a change in a policy that stood for a year.  Further the plaintiffs had not sufficiently shown that they were likely to suffer “irreparable injury” if the injunction was not issued as the policy had been around for almost a year when they filed their complaint. The Third Circuit affirmed the denial of the preliminary injunction “for the reasons that the Court explained in its exceptionally well reasoned Opinion”. Doe by & through Doe v. Boyertown Area Sch. Dist., No. 17-3113, 2018 WL 2355999, at *1 (3d Cir. May 24, 2018).

For more information, call our employment lawyers in Philadelphia at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

PA Supreme Court Upholds Non-Economic Damages for Whistleblowers

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Recently, the Pennsylvania Supreme Court held that wrongfully terminated whistleblowers can recover non-economic damages. Bailets v. Pa. Tpk. Comm’n., 2018 Pa. LEXIS 1498 (2018). Bailets centered around a whistleblower claim made by a manager of the Pennsylvania Turnpike Commission (PTC) alleging that they fired him in retaliation for reporting wrongdoings and waste to his supervisors. The lower court found in Plaintiff’s favor and awarded economic and noneconomic damages totaling over $3 million. The Pennsylvania Supreme Court affirmed the lower court’s decision and award of economic and non-economic damages.

This issue centered on whether the term “actual damages” in Section 125 of the Whistleblower Law should be narrowly or broadly interpreted to include non-economic damages. PTC argued that actual damages refer solely to economic damages because allowance of non-economic damages would be analogous to punitive damages. PTC also argued that exceptions to the Commonwealth’s immunity should be narrowly interpreted and thus non-economic damages should not be read into “actual damages.” The employee argued that actual damages include non-economic damages because the law’s purpose is remedial and serves to compel government compliance to the law. In addition, the employee argued that there is a long precedent in Pennsylvania that actual damages are equivalent to economic and non-economic damages. Furthermore, the employee argues that not awarding non-economic damages “would undermine the very purpose of the law to protect and encourage employee reporters of waste and wrongdoing.”

The Court approached this as an issue of statutory interpretation and held that the law must be liberally construed to allow non-economic damages, thus fulfilling the remedial purpose of the Whistleblower Law. Furthermore, the Court found that reading “actual damages” as solely economic damages would be superfluous considering the statute’s inclusion of different types of economic damages under the allowed types of recovery. The Court agreed with the employee that Pennsylvania’s precedence historically supports the finding that actual damages includes non-economic damages. The Court stressed that the state must allow recovery for non-economic harms such as humiliation, embarrassment, and mental anguish in order to make Plaintiff whole. Going forward, Bailets is significant in that it will open the door for more claims under the Whistleblower Law and allow for a greater recovery for successful claimants.

For more information, please call our Philadelphia whistleblower lawyers at Sidkoff Pincus & Green at 215-574-0600 or submit an online inquiry.

Supreme Court Holds Fourth Amendment to Obtain Search Warrant for Automobiles

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Justice Sotomayor, delivering the majority opinion in Collins v. Virginia, held that the automobile exemption does not permit warrantless searches of automobiles located in the home or curtilage. 2018 U.S. LEXIS 3210 (U.S. Supreme Court, May 29, 2018). In Collins, the police were investigating two highspeed traffic violations involving a stolen motorcycle.

Officer Rhodes, while investigating the matter, obtained photographs of Ryan Collins with a motorcycle fitting the description of the motorcycle involved in the traffic violations. Upon obtaining this information, Rhodes drove to Collins’ girlfriend’s home and observed what appeared to be a motorcycle underneath a tarp in the driveway. Rhodes, without a search warrant, walked on to the residential property, removed the tarp, and determined that the motorcycle was the one involved with the traffic incidents. Rhodes, after taking pictures of the motorcycle, returned to his car and waited for Collins to arrive. Collins was arrested and although he filed a pretrial motion to exclude evidence, Collins was convicted. The trial court, the Court of Appeals of Virginia, and Supreme Court of Virginia concluded that the evidence was admissible because Rhodes had probable cause and that this case would fall under the automobile exception to the Fourth Amendment.

In his appeal to the Supreme Court, Collins argued that the motorcycle was protected by the Fourth Amendment because, although not inside the home, the Fourth Amendment applies to “the area immediately surrounding and associated with the home” known as the “curtilage.” Secondly, Collins argued that even though Rhodes was searching a vehicle, the automobile exceptions does not grant unwarranted entry of the curtilage of one’s property.

The Court, in assessing Collins’ first argument determined that due to the location and design, his driveway was part of the curtilage. The driveway in this case was located alongside the house and was partially enclosed by brick walls on two sides and enclosed by the home on a third. Due to the driveways inherent attachment to the home the Court found that it was deserving of the same protection as a front porch, or side garden, and thus concluded that the driveway was part of the home’s curtilage.

The Court was faced with a much more difficult question when forced to assess the second issue in this matter, the automobile exception. The automobile exception to the Fourth Amendment states that police may search one’s automobile without a warrant if there is sufficient probable cause to do so. The reasoning behind this doctrine is that due to the inherent ability for an automobile to escape and drive off, the police are granted easier access in order to obtain necessary evidence. The Court rejected the argument that the automobile exceptions grants the police the ability to enter onto private property and conduct a warrantless search of the vehicle. The Court further declined to expand the scope of the automobile exception and based their decision on the foundation that, although they may have the right to search the vehicle without a warrant, they must also have the right to access the object itself. In this matter, Rhodes was without right to enter the private property, and thus his search of the motorcycle was unlawful. The Court held that the privacy of the home is paramount and to expand the scope of the automobile exception to allow for warrantless searches of a vehicle in the home or curtilage would violate the Fourth Amendment.

At the Law Offices of Sidkoff, Pincus & Green our experienced Pennsylvania and New Jersey attorneys handle many types of legal matters, including civil rights litigation. If you are interested in having a consultation with one of our Philadelphia business lawyers, please call us at 215-574-0600 or contact us online.

Third Circuit Upholds FLSA Standards 

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In a recent case before the Third Circuit, the Court upheld the willfulness standard necessary to extend the limitations period for FLSA claims while allowing a good faith standard for awarding liquidated damages. Souryavong v. Lackawanna Cty., 872 F.3d 122 (3d Cir. 2017). Plaintiffs filed suit against Defendant, Lackawanna County, for failing to pay overtime wages in violation of the FLSA. The employee Plaintiffs each worked two part time jobs for Defendant, who tracked the hours worked for each Plaintiffs’ jobs individually but neglected to aggregate the hours between the jobs resulting in a failure to pay overtime wages. Plaintiffs appealed from a lower court decision finding that Defendant did not willfully violate the FLSA but still awarded liquidated damages due to Defendant’s lack of good faith attempts of compliance to the FLSA.

The Court upheld the lower court’s decision that Defendant did not willfully violate the FLSA. Finding a willful violation is important for an FLSA claim because it extends the limitations period from two years to three years thereby enabling the plaintiff to recover an additional year of lost pay. To show willfulness, plaintiff cannot just show that defendant had a general awareness of the FLSA, but plaintiff must show actual awareness of the specific FLSA violation. Here, the Court upheld the lower court’s finding that Defendant did not meet the willfulness standard, and thus Plaintiffs were not eligible for an extension of the FLSA limitations period.

While the Court found that Defendant did not willfully violate the FLSA, they upheld that Defendant was liable for liquidated damages under a good faith standard. In the lower court, Plaintiffs argued that Defendant was liable for liquidated damages because they willfully violated the FLSA. To the contrary, Defendant argued that they were not liable for liquidated damages because they acted in good faith and the FLSA violations were unintentional. The lower court found that Plaintiffs were entitled to liquidated damages; however, their ruling was based on Defendant’s failure to prove good faith rather than Plaintiff’s willfulness argument. In this case, Plaintiffs argued that the lower court’s finding in favor of liquidated damages reaffirmed their assertion that Defendant was willful and thereby entitled them to the extended limitations period in addition to liquidated damages. However, the Third Circuit held that the lower court’s ruling had no bearing on the extension of the limitations period because it was based merely on Defendant’s lack of evidence of good faith attempts at FLSA compliance and not on their willfulness.

Overall, the Third Circuit reaffirmed the need to show willfulness to extend the limitations period for overtime violations claims under the FLSA. However, if an employer cannot provide sufficient evidence of good faith attempts at FLSA compliance, then employees are entitled to liquidated damages.

For more information, call our Philadelphia employment lawyers for Fair Labor Standards Act in Philadelphia and South Jersey at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

 

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US Supreme Court Enforces Individual Arbitration Agreements

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In May 2018, the Supreme Court in Epic System Corp. v. Lewis ruled in favor of employers in a matter involving the enforcement of individualized arbitration agreements. 2018 WL 2292444. In this case, the plaintiffs were all workers who had signed arbitration agreements which required them to pursue their grievances through individualized arbitration. Plaintiffs instead attempted to sue under two central claims. First, the plaintiffs insisted that the arbitration agreements should not be enforced because of  the “saving clause” of the Federal Arbitration Act (“FAA”) which allows courts to refuse to enforce arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract” in combination with the National Labor Relations Act (“NLRA”) which governs workers’ rights to “bargain collectively . . . and to engage in other concerted activities for the purpose of collective bargaining.” Secondly, the plaintiffs argue that even if the “saving clause” of the FAA does not protect their claim, Congress intended for the NLRA and not the FAA to be the controlling regulation.

When faced with determining the merits of the plaintiffs’ first argument, the Court relied primarily on the text of the regulation to determine the meaning and implications of the “saving clause.” When analyzing the clause, the Court focused on the inclusion of the term “any contract.” Id. at 6. The Court believed that this language instructs the courts to treat all contracts, including arbitration agreements, equally. The reason the interpretation of an equal treatment requirement is significant is that under general contract law, the court may only choose to invalidate a contract under the general defenses of fraud, duress, or unconscionability. Id. at 6. The majority held that the illegality claim was not a claim of unconscionability, but instead narrowly interpreted the argument to be no more than stating a contract should not be enforced “because it requires bilateral arbitration.” Therefore, the majority denied plaintiffs’ first claim because they found that the defense was not founded in the traditional defense to contracts, and thus not covered under the “saving clause” of the FAA.

Similar to its denial of the first argument, the majority focused primarily on the text of the NLRA in determining Congress intention regarding NLRA. Plaintiffs’ argument rests on the language in §7 of the NLRA which guarantees workers the right “to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining.” Plaintiffs’ claim that the language of this act prevents the enforcement of agreements which inhibit the workers right to engage in class action suits. The Court in this matter did not find that the language provided in §7 provided a clear congressional command to displace the Arbitration Act. In making its decision the majority focused on the direct language of the act and refused to read into the meaning of “concerted action for the purpose of collective bargaining.” The Court held that not only did this language fail to amount to a clear congressional command to overrule the FAA, but it also failed to establish any relation to class action lawsuits. The Court found that since Congress is well aware of how to explicitly state that one act is overruling another and chose not to do so in the NLRA, Congress did not intend for this act to override the FAA. Since the language was placed along with actions involving the forming and joining of labor organizations and collective bargaining, it was intended to mean concerted action in furtherance of those actions, not workers’ involvement in class action suits.

For more information, call our business lawyers in Philadelphia at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

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Third Circuit Ruling FLSA Overtime Wages

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On May 23, 2016 the Third Circuit Court of Appeals held that truck drivers who mainly drove intrastate, and only incidentally or occasionally drove interstate during their business, were entitled to the benefits of the Fair Labor Standards Act (FLSA) and Pennsylvania Minimum Wage Act (PMWA) regarding overtime pay rates. Mazzarella v. Fast Rig Support, LLC, 823 F.3d 786 (3d Cir. 2016). Drivers for a trucking company claimed that they often worked over forty hour weeks, and yet were only compensated for overtime when they worked over forty-five hour weeks. The trucking company attempted to argue that because it was a motor carrier, under the Department of Transportation’s jurisdiction, and its business transporting water to fracking sites involved transporting an item between “a State and a place in another State” it was consequently exempt from the FLSA through the Motor Carrier Act (MCA).

The Third Circuit however rejected the trucking company’s representation and classification of the nature of its business. The Court found that the operations of the drivers in their work was not part of a “continuous stream of interstate travel” that would fall under the MCA’s exemption to the FLSA. All evidence presented by the trucking companies demonstrated that their operations only occasionally and incidentally impacted interstate commerce. Their operations that only occasionally entailed driving to other states were not part of a “practical continuity of movement in interstate commerce”. The Court ruled that exemptions to FLSA should be narrowly construed against the employer to ensure employees are properly protected. The high burden of proving an exemption to the FLSA’s overtime requirements was not met by the mere statements and unspecific evidence put forward by the company to demonstrate the interstate nature of its employees’ operations. The truck drivers’ award of $31,000 was affirmed by the Court to compensate them for the overtime worked and guarantee their protection under the FLSA.

For more information, call our Philadelphia employment lawyers at Sidkoff, Pincus & Green at 215-574-0600 or submit an online inquiry.

Superior Court Upholds PA Overtime Rate Method  

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The Superior Court of Pennsylvania recently ruled in a case that dealt with the proper method of calculating overtime wages paid to non-exempt employees. In Chevalier v. General Nutrition Centers, Inc., 177 A.3d 280 (Pa. Sup. Ct. 2017) employees at GNC, a company selling health and nutrition related products, brought suit against the company alleging that the calculation of their overtime pay violated Pennsylvania Minimum Wage Act (PMWA).The PMWA requires “a payment of at least one and one-half of the employees’ regular rate” for each hour worked in excess of forty hours. Id. GNC’s method of calculating overtime pay is called the fluctuating workweek (“FWW”) method. Id. The FWW method takes the salaried employee’s weekly pay and divides it by the total number of hours worked (including overtime hours) which produces a certain dollar amount which is considered the “regular rate”. This regular rate is then halved (.5) and multiplied by the number of hours of overtime worked which produces the final overtime dollar amount. The employees’ method of calculation, also referred to as the forty-hour method, takes the forty-hour work and divides it by the hourly rate (yielding a higher “regular rate” than the FWW). The regular rate plus half of the regular rate (1.5) is then multiplied by the hours worked (which produces a substantially higher dollar amount than the FWW).

GNC argued that the United States Supreme Court held that the FWW method was lawful under the FLSA (“Fair Labor Standards Act”) and the PA General Assembly adopted the “regular rate” terminology in the PMWA’s overtime provision. In addition PA case law instructs that, unless a contrary intent appears, when a PA statute tracks the language of a federal statute, PA courts should consult federal authority for guidance in ascertaining the meaning of the term in question. Notably, nothing in the text of the PMWA suggest that the General Assembly intended to give a meaning to “regular rate” different from that establishes under the FLSA. GNC further argued that while the PMWA does authorize the PA Department of Labor and Industry to promulgate regulations defining “regular rate”, it hasn’t done so, which shows there was no intent to bar the FWW method.

The employees countered that the important difference between the PMWA and the FLSA is that the policy statements in the preamble to the PMWA demonstrate that it was intended to provide greater protection for employees in Pennsylvania. They also emphasized that although there may be no regulation that prohibits the FWW method, Pennsylvania has not promulgated regulation that authorizes the FWW. Id. Lastly, the employees argued that the FWW method runs directly counter to the purpose of the PMWA which is promoting employment by incentivizing employers to hire more workers as opposed to paying existing workers overtime.

The Court, in its analysis, quickly disposed of the issue pertaining to the “one and one half” premium on overtime hours. It concluded that the trial court correctly determined that the second part of GNC’s FWW method, paying an overtime premium of one-half the regular rate, violated the PMWA. The Court reasoned that had the Department wanted to authorize one-half time payment it surely knew how to do so. Rather, the Department adopted the “one and one-half times” language from the FLSA overtime provision. Clear rules of statutory construction demonstrate that the General Assembly intended the multiplier to be one and one half as opposed to one-half.

In addressing the proper calculation of “regular rate”, the Court concluded that absent legislative or regulatory action, GNC’s calculation of the “regular rate” did not violate the PMWA. The Court began by examining the history of the overtime provisions in both the FLSA and the PMWA. The Court said that by the time the PMWA was enacted, the FLSA was clearly understood to permit employers to calculate the “regular rate” of salaried employees by reference to the total hours worked. This idea was affirmed in a Supreme Court case and then codified in a series of federal regulations. The Court concluded further that the General Assembly was aware of the FLSA, knew how to deviate from the FLSA, but did not do so. Finally, the Court said that the Employees argument based on the PMWA’s general purpose is unavailing. Therefore, the Court upheld the GNC’s FWW method of calculating overtime hours but struck their half multiplier in a win-lose situation for both parties.

For more information, contact the Philadelphia overtime lawyers at Sidkoff, Pincus & Green at 215-574-0600 or contact us online.

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Supreme Court holds “Service Advisors” exempt under FLSA

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On April 2, 2018, the United States Supreme Court held that service advisors at car dealerships are exempt from the FLSA’s overtime-pay requirements under 29 U.S.C. 213(b)(10)(A). Encino Motorcars, LLC v. Navarro, 138 S.Ct. 1134 (2018). In Encino Motorcars, the Court considered the scope of the Fair Labor Standards Act (FLSA) which requires employers to pay overtime to covered employees who work more than 40 hours a week. The FLSA exempts from the overtime-pay requirements “any salesman, parts man, or mechanic primarily engaged in selling or servicing automobiles” at a covered dealership. Service advisors at car dealerships “meet customers; listen to their concerns about their cars; suggest repair and maintenance services; sell new accessories or replacement parts; record service orders; follow up with customers as the services are performed and explain the repair and maintenance work when customers return for their vehicles.”

The Court held that a service advisor is “obviously a salesman”, since the statute did not provide a definition for “salesman” the court construed the term based off its ordinary meaning. The ordinary meaning of “salesman” is someone who sells goods or services. The Court concluded that service advisors sell service to customers for their vehicles. In addition, they are primarily engaged in servicing automobiles because they are integral to the process of providing maintenance and repair even if they don’t physically repair the car. The Court rejected the distributive canon employed by the Ninth Circuit to match “salesman” with “selling” and “parts man and mechanic” with “servicing”. The Court then examining the Ninth Circuits reliance on legislative history which it found unpersuasive. Even for “those [Members of the Court] who consider legislative history, silence in legislative history . . . cannot defeat the better reading of the text and statutory context.”

The Court relied heavily on the text of 29 U.S.C. 213(b)(10)(A), concluding that service advisors are exempt from the overtime-pay requirement because they are “Salesman . . . primarily engaged in servicing vehicles. The case was reversed and remanded for further proceedings.

For more information or to discuss an issue regarding overtime, call Sidkoff, Pincus & Green at 215-574-0600 or contact us online. Our Philadelphia overtime lawyers represent clients in Pennsylvania and New Jersey.