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Lawsuit Update and BREAKING NEWS

LA Federal Court Awards Officers for Donning & Doffing Time

May 16, 2009 - Los Angeles Federal Court Awards Uniformed Officers Back Pay for Donning & Doffing Time.

Click here for the complete Los Angeles Times article

Click here for the judge's full opinion.

Court Ordered Notice

The following Notice concerning this action was issued by United States District Judge Susan Webber Wright and represents the Court approved Notice provided to all uniformed officers of the Little Rock Police Department believed to be similarly situated members of the prospective class in this matter. The following Notice is the only official Notice sanctioned by the Court. Any and all additional content within this website constitutes solely the opinions and representations of the attorneys for the Plaintiff herein.

March 9, 2009 - NOTICE OF YOUR RIGHT TO JOIN A LAWSUIT SEEKING OVERTIME COMPENSATION UNDER THE FAIR LABOR STANDARDS ACT.

I. Introduction

The purpose of this Notice is...

• To inform you of the existence of a collective action lawsuit in which you may be “similarly situated” to the named Plaintiff, and thus potentially entitled to a recovery of money owed to you in the form of overtime wages pursuant to the Fair Labor Standards Act (“FLSA”);

• To advise you of how your rights may be affected by this lawsuit, and;

• To instruct you on the procedure for participating in this lawsuit, should you decide that it is appropriate and should you choose to do so.

II. Description of the Lawsuit

On May 9, 2008, Thomas J. Musticchi, an employee of the City of Little Rock, brought a lawsuit against the City of Little Rock in the United States District Court for the Eastern District of Arkansas. Plaintiff alleges that the City of Little Rock has violated federal law by failing to pay overtime compensation for all hours worked.

Plaintiff alleges that he, and other uniformed police officers of the City of Little Rock, is entitled to be compensated at the rate of time and one-half the regular rate of pay for all hours worked in excess of a 40-hour workweek. Plaintiff alleges that as a general practice, uniformed police officers are required to maintain, don and doff certain protective equipment and unique clothing that is necessary to the performance of uniformed police officers' job duties. Plaintiff claims that time is spent outside the officers' regularly scheduled shifts in accomplishing these tasks and that such time is not being compensated by the City of Little Rock.

Plaintiff seeks a judgment for unpaid overtime compensation plus an equal amount of liquidated damages and an award of attorneys’ fees and costs.

The City of Little Rock denies that it has violated the FLSA, or that any wages are owed, and is defending against all claims that have been asserted. This lawsuit is now proceeding through the pre-trial stages.

III. Composition of the Class

Plaintiff is seeking to sue on behalf of himself and also on behalf of other individuals employed by the City of Little Rock as uniformed police officers who were not compensated at time and one-half of the regular rate of pay for time spent outside the employees' regularly scheduled shifts maintaining, donning and doffing protective equipment and unique clothing necessary to the performance of their jobs from May 9, 2005, to the present.

IV. Your Right to Participate in This Lawsuit

If you fit the definition above, you may join this lawsuit (that is, you may "opt in") provided that you cause to be filed a "Consent to Join Action" form within 60 days of the issuance of this Notice. If you file a "Consent to Join Action" form within that time, your continued right to participate in this lawsuit may depend upon a later decision by the District Court that you and the Plaintiff are actually "similarly situated" in accordance with federal law.

Consent to Join Action forms are available from Clark Mason Attorneys, 1501 N. University, Suite 350, Little Rock, AR 72207, (501) 219-0077, email Clark@clarkmason.com.

V. Effect of Joining This Lawsuit

If you choose to join this lawsuit, you will be bound by the judgment, whether it is favorable or unfavorable. While this lawsuit is proceeding, you may be required to respond to written questions, sit for depositions and/or testify in court.

The attorneys for the class plaintiffs are being paid on a contingency basis, which means that if there is no recovery, there will be no obligation to pay any attorneys' fees or reimburse costs to plaintiffs' counsel. If there is a recovery, the attorneys for the class will receive one-third of any settlement obtained or money judgment entered in favor of all members of the class.

By joining this lawsuit, you designate the class representative as your agent to make decisions on your behalf concerning the litigation, the method and manner of conducting this litigation, and entering of an agreement with Plaintiffs’ counsel concerning attorneys’ fees and costs, and all other matters pertaining to this lawsuit. These decisions and agreements made and entered into by the representative Plaintiff will be binding on you if you join this lawsuit.

VI. No Legal Effect in Not Joining This Lawsuit

If you choose not to join this lawsuit, you will not be affected by the judgment, favorable or unfavorable. If you choose not to join this lawsuit, you are free to file your own lawsuit.

VII. Protections Against Retaliation or Discrimination

The Fair Labor Standards Act prohibits anyone from discharging, disciplining, discriminating or retaliating against you because you have exercised your rights to join this lawsuit.

VIII. Your Legal Representation If You Join

If you choose to join this lawsuit, your interest will be represented by the named plaintiff through his attorneys as counsel for the class. The counsel for the class are:

Clark Mason Clark Mason Attorneys The Prospect Building 1501 N. University Suite 350 Little Rock, AR 72207

James J. Thompson Hare, Wynn, Newell & Newton, LLP The Massey Building 2025 Third Ave. North Birmingham, AL 35203

Nolan E. Awbrey Hare, Wynn, Newell & Newton, LLP The Massey Building 2025 Third Ave. North Birmingham, AL 35203

IX. Further Information

Further information about this lawsuit, the availability of Consent to Join Action forms and the deadline for filing the Consent to Join Action form can be obtained by telephoning attorney Clark Mason at (501) 219-0077.

X. No Opinions Expressed As To The Merits Of This Case

This notice is for the sole purpose of determining the identity of those persons who wish to be involved in this lawsuit. The United States District Court for the Eastern District of Arkansas expresses no opinion regarding the merits of the Plaintiff's claims or the City of Little Rock's defenses. There is no assurance at this time that any relief will be granted, nor if granted, the nature and amount of relief.

THIS NOTICE AND ITS CONTENTS HAS BEEN AUTHORIZED BY THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS.

Motion Granted

February 2, 2009 - U.S. District Judge Susan Webber Wright grants Plaintiff's motion for Class Certification. To read more, click here.

Motion Filed for Class Certification

November 17, 2008 - a Motion for Class Certification and formal request to provide notice to all potential LRPD class members was filed with the United States District Court. Our Motion requested authority from the Court to send notice to all potential collective action members. Under Arkansas' Rules of Professional Responsibility, Arkansas attorneys are, in general, prohibited from directly contacting potential members of this lawsuit until the Court grants permission to do so. We expect the Court to rule on our pending Motion any day. We fully anticipate the Court will grant the pending Motion and, once granted, the attorneys will immediately mail formal notice and additional specific information concerning your rights to all potential members of the suit. In the process of formal pretrial discovery the City of Little Rock provided what the City represents to be current contact information for all potential class members.

Deposition of Chief Thomas Taken by Counsel for LRPD Officers

October 10, 2008 – On this date formal sworn deposition testimony of Chief Thomas was taken by counsel for LRPD officers. The entire deposition of Chief Thomas is being posted for your review. To read the deposition of Chief Thomas click here.

Responses to Concerns Expressed by Patrolmen

Who is able to join in this lawsuit?

This lawsuit applies to Little Rock Police Department uniformed patrol officers. Contrary to the position taken by Little Rock FOP leadership, in identical cases around the country, almost without exception all FOPs have supported these cases on behalf of their uniformed patrol officers. Certainly no other FOP lodges across the country have opposed identical pending or resolved litigation. Of course, you should be reminded that it was only your FOP leadership, in conjunction with the City, not the rank and file membership itself, that has joined the City in opposition to this action.

Why haven't I been contacted to join the lawsuit?

Attorneys are prohibited by rules of professional conduct from directly soliciting officers to join this lawsuit until a Class Certification motion has been granted by the court. On November 17, 2008 a motion for Class Certification was filed with the Court, which requested the Court's permission to send notice to all potential collective action members. On February 2, 2009 the motion was granted by U.S. District Judge Susan Webber Wright certifying the lawsuit as Class Action. Once a mutually agreeable opt-in notification format has been submitted to Judge Wright, a formal notice and other information will be provided directly to all potential members of the suit. However, in the interim, if you are a uniformed patrol officer and would like to be contacted regarding your rights or the status of this suit, click here to provide your contact information.

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What's the difference between a collective action and a class action lawsuit?

Collective action is a legal term for group litigation alleging violations of the Fair Labor Standards Act. There are some important procedural differences between a collective action and a class action. Most significantly, in a collective action, officers must affirmatively opt-in to receive any monetary award of damages.

Should I be concerned about retaliation?

No. Federal law prohibits any type of retaliation, directly or indirectly.

Chief Thomas stated under oath in his deposition, taken October 10, 2008, that there would be absolutely no retaliation in any way for those who participate in this lawsuit. Moreover, federal law provides for significant financial penalties for direct or indirect retaliation against any officer who participates in this action, including punitive damages.

"Title 29 of the United States Code, §15(a)(3) and §16(b) states, in part, "It shall be unlawful…to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted... any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding…Any employer who violates the provisions of section 15(a)(3) of this Act shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 15(a)(3), including, without limitation, employment, reinstatement, promotion and the payment of wages lost and an additional equal amount as liquidated damages."

Will my off-duty employment be effected?

No. Chief Thomas was questioned and once again testified under oath in his deposition taken October 10, 2008, regarding the subject of "off-duty" employment for LRPD officers. He stated that he believes "very firmly" that the visibility and presence of a uniformed police officer and police vehicle has a deterrent effect, that off-duty employment is a positive thing and that it is beneficial to the officers, the City and the private employer.

"...I personally believe that, yes, we do [benefit from off duty uniformed officers]... you have many situations where if the private business or industry hires an individual to be present they will frequently take care of things that might require us to dispatch a normal patrol unit to do. They also have a deterrent effect. I believe very firmly that the visibility and presence of a police vehicle, of a police officer, has a deterrent effect and may, may move them from one place to another, but it does have a bit of a deterrent effect. So, I believe that off duty employment by private employers within the context of our policy is a positive thing... as a general rule, the way our policy governs it, I believe it's beneficial to us all."

© 2009 Clark Mason Attorneys | Hare, Wynn, Newell & Newton LLP