Stein v. Guardsmark


, New York Law Journal


Judge J. Paul Oetken

Lipman founded—and is principal of—Tennessee-based private security firm Guardsmark, which employs more than 16,000 people across North America and the United Kingdom. He maintains a staff of assistants to aid with business communications demands. In her putative collective action, Lipman's former secretary Stein—an at-will employee—alleged Guardsmark's and Lipman's violation of the Fair Labor Standards Act by failing to pay her enough overtime. Finding that Guardsmark and Lipman demonstrated that the five criteria articulated in Ayers v. SGS Control Servs. were satisfied, the court concluded that Stein was paid all legally required overtime pursuant to the "fluctuating work week" method established under the Supreme Court's 1942 ruling in Overnight Motor Transp. v.Missel and 29 CFR §778.114. In addition to Stein's fluctuating weekly work hours and fixed weekly salary, affidavit testimony and other record evidence demonstrated that Stein and Guardsmark had a clear mutual understanding that Stein was to be paid a fixed salary regardless of the number of hours worked. She also received a 50 percent overtime premium in addition to her fixed weekly salary for all hours worked beyond 40 weekly.

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