United States District Court, M.D. Florida, Fort Myers Division
REYES HERNANDEZ, for himself and on behalf of those similarly situated, Plaintiff,
ROCK SOLID COUNTER TOPS & MORE, INC., a Florida profit corporation and HUGO VARGAS, individually, Defendants.
REPORT AND RECOMMENDATION
NICHOLAS P. MIZELL UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on review of a Joint Motion for
Approval of Settlement filed on July 1, 2019. (Doc. 44).
Plaintiff Reyes Hernandez and Defendants Rock Solid Counter
Tops & More, Inc. and Hugo Vargas request that the Court
approve the parties' settlement of the Fair Labor
Standards Act claims asserted in this case. After a careful
review of the parties' submissions and the court file,
the Court recommends approval of the proposed settlement.
action was brought under the Fair Labor Standards Act of
1938, 29 U.S.C. § 201 et seq. In this Circuit,
parties may not settle (by joint dismissal or otherwise) an
FLSA action without providing the Court at least some
information concerning the resolution of the claims-not even
parties receiving vigorous representation from
counsel-because “the FLSA, a statute famously designed
to preempt in certain particulars the possibility of private
agreement, remains immune to the unsupervised intrusion of a
private agreement.” Dees v. Hydrady, Inc., 706
F.Supp.2d 1227, 1237 (M.D. Fla. Apr. 19, 2010); see also
Id. at 1245 (statutory rights granted by the FLSA have a
“private-public character”) (quoting Brooklyn
Savings Bank v. O'Neil, 324 U.S. 697, 708 (1945)
(holding that employees may not waive any rights conferred by
the FLSA when there is no dispute concerning both the
applicability of the FLSA and the amount of unpaid wages)).
even a “full compensation” agreement by which all
of plaintiff's claims for wages and liquidated damages
are paid in full-plus costs and a reasonable attorney's
fee-can be jointly dismissed by the parties only if they
adequately assure the Court that neither an “exchange
of another valuable consideration of any kind, ” nor
the forbearance of any valuable right of the plaintiff, is
included in the agreement or any “side deal.”
Id. at 1239-1240.
there is anything short of a full compensation agreement, the
parties' proposed agreement must be filed on the public
docket and presented to the district court for approval.
Parties wishing to compromise a coverage or exemption issue
must describe the employer's business and the type of
work performed by the employee. The employer should
articulate the reasons for disputing the employee's right
to a minimum wage or overtime, and the employee must
articulate the reasons justifying his entitlement to the
disputed wages. If the parties dispute the computation of
wages owed, the parties must provide each party's
estimate of the number of hours worked and the applicable
Id. at 1241-42. The agreement may not prospectively
waive any FLSA rights, and it must award employee's
counsel a reasonable fee that does not taint the
employee's recovery. Id. at 1243. Moreover, even if
the agreement would be a reasonable resolution of the
employee's claims, the Court must also ensure that it
does not frustrate the implementation of the FLSA, such as
leaving claims of similarly situated employees or recurring
issues unresolved. Id. at 1244. Finally, any
additional terms, such as non-disparagement or
confidentiality provisions, must be for the benefit of the
employee only or in furtherance of the employee's
interests. See Zdun v. Virtu Cathedral Associates,
LLC, No. 3:17-cv-579-J-39PDB, 2018 WL 3761024, *3-4 (M.D.
Fla. May 14, 2018).
the parties are represented by competent counsel in an
adversary context, the settlement they reach will, almost by
definition, be reasonable.” Dees, 706
F.Supp.2d at 1241. Nevertheless, the Court must scrutinize an
FLSA settlement for fairness, including an evaluation of:
(1) the existence of fraud or collusion behind the
settlement; (2) the complexity, expense, and likely duration
of the litigation; (3) the stage of the proceedings and the
amount of discovery completed; (4) the probability of
plaintiff's success on the merits; (5) the range of
possible recovery; and (6) the opinions of the counsel.
DEFENSES, AND PROPOSED SETTLEMENT
Complaint, Plaintiff alleges that he worked as a non-exempt
installer for Defendants' residential and commercial
countertop installation service. (Doc. 1 at 3). Plaintiff
claims that Defendants initially paid Plaintiff an hourly
wage and later paid Plaintiff at a piece rate.
(Id.). Plaintiff further claims that while he was
paid at an hourly rate, Defendants used a timeclock for
recording hours. (Id.). However, when Defendants
changed pay to a piece rate, Defendants stopped recording
hours. (Id. at 4). Plaintiff alleges that he worked
in excess of forty (40) hours per week, but Defendants failed
to pay him proper compensation for these additional hours.
(Id. at 5). Defendants deny these allegations
claiming that Plaintiff did not work in excess of forty hours
any work week for which he did not receive overtime
compensation. (Doc. 44 at 2). In fact, Defendants allege,
there were many weeks in which Plaintiff did not work forty
evaluating the factors discussed in Dees to
determine fairness and reasonableness, counsel for both
parties find a benefit to a settlement rather than protracted
litigation. (Doc. 44 at 3). The parties assert there is no
fraud or collusion. (Id.). And, given the
complexity, expense, likely duration of the litigation, and
the probability of success, the parties also decided that
these factors militate in favor of the proposed settlement.
(Id.). The parties agree that continuing to litigate
this matter would cause each party to incur additional costly
discovery, motion practice, and possibly a trial.
(Id.). The ...