"The attorney for the class action suit had been in contact with most of the plaintiffs and sent a letter stating the finalization and suggested we could carry on the suit through other attorneys or the labor board," says Larry. "But the labor board decided they couldn't go any further with the case and suggested to all of us opt-in plaintiffs that we carry on and we would be able to go forward because the judge discussed the case without prejudice."
Larry's overtime complaint is the same as the original plaintiffs (although it doesn't involve the same amount of overtime hours): They worked on a re-set team—a group of 3 or 4 workers went around to various Wal-Marts and did re-sets at night for their company. Larry explains that a re-set is when you go into a retailer and rearrange products by row. "The original plaintiffs claimed that they worked over 8 hours a day and I believe that because I also did re-sets; it is easy to get messed around on hours," Larry says. "Often we had to travel 6 hours or so and work that evening for another 8 hours; then go back to the motel, sleep and go back the following evening. I did this for 5 days and those original plaintiffs did re-sets full-time.One time I drove to a town in Missouri which took 7 hours to drive one way; checked into a motel around 5.30 pm and reported to the business at 8.30 pm. I worked that night until 6am the following morning. Then went back to the motel, slept and reported again the next night. This is basically what the re-set team did all the time.
Part of our complaint is that we were always told to put 40 hours a week on our time sheets and in essence, they gave us an example of how to fill it out. They showed us how to enter a nine-hour day with a one-hour lunch period, whether it was travel time or a store call. We asked for paid time to travel; if we had two hours of travel in an 8-hour day, we should have been paid two hours overtime.
When our day was finished at the store and we came home, part of our job duties were to download a daily report or do a project that the company wanted, so we spent an average of two hours a night working for the company.
(I was terminated in 2005—I had done a decent job and was never written up. I was doing a re-set and upon completion, I couldn't find the department manager; I had a cart full of product taken off the shelf and moved it to the back room and left it there without telling the supervisor. The next morning the supervisor saw the cart, called the manufacturer and complained and the company terminated me--without paying overtime.)
After careful consideration, I concluded that 14 hours a week of overtime compensation would be satisfactory. The attorneys had a formula to go by and it went back two years so that is well within reason. If we won the case there would be a third year tacked on to that so I am looking at $26,000 to $54,000 for me personally and tag on at least 400 plaintiffs—Acosta owes a lot of money in overtime.
I talked to a handful of other plaintiffs but some of them have given up. The 4 people that asked that the complaint be turned into a class action settled for $1,000 each and that is sickening. I don't know how they came up with that pittance—it is really pathetic. I think that people gave up hope. The only drawback was that instead of going nationally, they should have done it by state or region.
I went on the Internet and placed a call for attorneys to pick up this case. I have had two responses so I hopeful that something will happen."
Larry's claim against Acosta, Inc., along with the claims of the 487 other opt-in plaintiffs was dismissed by the federal court judge in Memphis. Their attorneys filed a request for him to reconsider the decision but the request was denied. However, the judge's ruling did not say the plaintiffs do not have a claim. Rather, the ruling states that the claim (and all other opt-in plaintiffs) cannot be heard or resolved in the lawsuit filed in Memphis. As a result, the claims of ALL the opt-in plaintiffs, those who joined in 2005 and those who joined in 2007, have been dismissed without prejudice. This means that Larry has the right to pursue his own individual claim - he just cannot do so in this lawsuit.
The named plaintiffs, whose lawsuit Larry's claim became a part of, ended their case against Acosta and the company paid each of the them $1,000.00 in unpaid wages, reimbursed a portion of their litigation costs incurred in the lawsuit, and agreed not to pursue recovery of its costs upon dismissal of the case.
In a letter, Larry's attorneys explained that Acosta was not willing to offer any kind of settlement to the opt-in plaintiffs who were previously dismissed, and suggested the following options if he desires to pursue the claim further:
1. Seek a local attorney to represent you
You can seek local counsel to bring a lawsuit on your behalf in the federal court in your area. If you decide to seek a local attorney, you can provide him or her with the Summary of the Facts regarding your individual claim…we will cooperate fully with any attorney who contacts us on your behalf. If you choose this option, you should act immediately to obtain local counsel. Your rights could be prejudiced if you do not act promptly.
2. File a claim with the U.S. Department of Labor Wage and Hour Office.
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Please note that if you do not want to pursue your claim you can simply take no further action. However, we urge you to at least file a complaint with the Department of Labor. It will cost you nothing beyond your time in doing so.