NEW ORLEANS – A lawsuit filed by a former Orleans Parish Deputy alleges that Sheriff Marlin Gusman underpaid deputies for overtime and straight time worked on either end of their scheduled shifts.
The lawsuit was filed in U.S. District Court by Don Marshall Jr. in April 2015 and was given class-action status in January. It alleges that deputies employed by Gusman were not paid in compliance with the Fair Labor Standards Act.
“The fair labor standards act requires employers to pay non-exempt employees time-and-a-half for all hours worked over 40,” an employment lawyer who handles overtime cases, but did not want to be named because he is not connected with the class action, told the Louisiana Record. “The government is not exempt from the provisions of the Fair Labor Standards Act generally.”
According to court documents, Marshall said that pre- and post-shift overtime was not approved and paid unless it exceeded 30 minutes, however, no deputy could leave a post until relieved by a colleague. Marshall asserted that this sometimes meant deputies worked beyond their shift without compensation.
The class action is open to all sheriff’s deputies employed by Gusman who worked on a tour of duty shift schedule at the civil, criminal, or municipal district court; the temporary detention center; Orleans Parish Prison; or other facilities in the three years leading up to April 9, 2015.
Gusman’s lawyers have argued that the certified class should include only deputies employed between April 9, 2013, and April 9, 2015, because they assert that Marshall has not presented enough evidence to suggest that any breach of the FLSA was purposeful. The FLSA states that the statute of limitations is three years if there is willful deception by the defendant and only two years if the breach is was unintentional. U.S. District Judge Nannette Jolivette Brown granted a conditional certification to the three-year class, but acknowledged that additional discovery might lead to limitation of the class.
The defense also said that deputies have diverse duties and responsibilities, and so cannot be considered as part of a single group. The court rejected this idea.
“Although Marshall will almost certainly be subject to different damages calculations than other plaintiffs,” the court wrote in the class certification, “by the very nature of FLSA claims, each individual plaintiff in an FLSA case requires some individualized inquiry into damages based on dates of employment, overtime hours worked, rate of pay and other individual facts.”
Marshall’s attorney Brian Glorioso told the New Orleans Advocate that the Department of Labor already had an investigation open but put it on hold after Marshall filed his suit.
Marshall, who left the sheriff’s department in 2014 after his election as constable in Tangipahoa Parish, previously filed an unrelated civil suit against Gusman. That suit claimed that prolonged exposure to toxic mold at the Orleans Parish Prison and the Criminal District Courthouse led to his allergic hypersensitivity. That suit was dismissed with prejudice by the U.S. District Court for the Eastern District of Louisiana.