Garcia v. Yachting Promotions, Inc.

RESPONSE to 10 Statement of Claim

S.D. Fla.June 3, 2015

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 15-20776-Civ-Scola DANILO LOPEZ GARCIA, and all others ) similarly situated under 29 U.S.C. 216(b), ) ) Plaintiff, ) ) V. ) ) YACHTING PROMOTIONS, INC., ) ) Defendant. ) ) DEFENDANT’S RESPONSE TO PLAINTIFF’S STATEMENT OF CLAIM Defendant, YACHTING PROMOTIONS, INC., by and through its undersigned counsel and pursuant to this Court’s March 4, 2015, Order (Doc. 7) responds to Plaintiff, DANILO LOPEZ GARCIA’s Statement of Claim (Doc. 10) and states: Defendant correctly compensated Plaintiff for all hours worked at the correct rates required, pursuant to the Fluctuating Workweek Calculation Method, 29 CFR §778.114. Pursuant to a written agreement between the parties, Plaintiff was paid a fixed amount greater than the applicable minimum wage rates as straight time pay for however many hours worked in a workweek, regardless of the number of hours worked. Plaintiff’s regular rate varied from week to week and is determined by dividing the number of hours worked in the workweek by the total fixed amount paid to Plaintiff to arrive at the hourly rate for the workweek. During the course of Plaintiff’s employment with Defendant, Defendant applied the U.S. Department of Labor’s established Coefficient Table for Computing U.S. Department of Labor (WH-134) to Plaintiff’s regular salary. Thereafter, Plaintiff was paid for all overtime hours worked at one-half of the weekly hourly rate in addition to the fixed amount. Defendant’s payments of overtime hours at Case 1:15-cv-20776-RNS Document 17 Entered on FLSD Docket 06/03/2015 Page 1 of 3 2 the one-half rate in addition to Plaintiff’s fixed rate satisfied the overtime pay requirements of the Fair Labor Standards Act (“FLSA”) because Plaintiff already was compensated at the straight time regular rate under the fixed salary arrangement. See South Florida Beverage Corp. v. Figueredo, 409 So.2d 490, 494 (Fla. Ct. App. 1981) (“An employee under 29 C.F.R. s 778.114 who is ‘employed on a salary basis may have hours of work which fluctuate from week to week and the salary may be paid pursuant to an understanding with his employer that he will receive such fixed amount as straight time pay for whatever hours he is called upon to work in a work week, whether few or many.’”); see also Lewis v. Keiser Sch., Inc., No. 11-62176-CIV, 2012 WL 4854724 (S.D. Fla. Oct. 12, 2012). Further, the evidence shows that Defendant acted lawfully and in good faith at all times, and properly relied on FLSA regulations authorizing Plaintiff’s pay method. Thus, there is no basis to allege any willful conduct by Defendant under the FLSA since Defendant did not violate the FLSA. Under these facts, the maximum relevant liability period is two (2) years -- or February 18, 2013, to January 25, 2015 (100 weeks and 6 days). Dated this 3 rd day of June, 2015 Respectfully submitted, /Kevin D. Zwetsch WILLIAM E. GROB Florida Bar Number 0463124 E-mail: william.grob@ogletreedeakins.com KEVIN D. ZWETSCH Florida Bar Number 0962260 E-mail: kevin.zwetsch@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 100 North Tampa Street, Suite 3600 Tampa, Florida 33602 Telephone: 813.289.1247 Facsimile: 813.289.6530 ATTORNEYS FOR DEFENDANT YACHTING PROMOTIONS, INC. Case 1:15-cv-20776-RNS Document 17 Entered on FLSD Docket 06/03/2015 Page 2 of 3 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 3, 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. /s/Kevin D. Zwetsch Attorney SERVICE LIST J.H. Zidell Julia M. Garrett Elizabeth Olivia Hueber Steven C. Fraser J.H. ZIDELL, P.A. 300 71 st Street, Suite 605 Miami Beach, Florida 33141 zabogado@aol.com jgarrett.jhzidellpa@gmail.com elizabeth.hueber.esq@gmail.com steven.fraser.esq@gmail.com (Counsel for Plaintiff) via CM/ECF Electronic Notification 21283389.1 Case 1:15-cv-20776-RNS Document 17 Entered on FLSD Docket 06/03/2015 Page 3 of 3