News
February 17, 2010

Polsinelli Shughart’s Labor and Employment Vice Chair Anthony J. Romano calls a panel of three Court of Appeals judges’ decision, in an overtime dispute, a victory for businesses, interstate commerce and the ongoing safety of our nation’s highways. After a lengthy court battle, the Kansas Court of Appeals ruled in favor of Nebraska Furniture Mart (“NFM”), holding that NFM was not an “employer” as defined by the Kansas Minimum Wage and Maximum Hours Law (“KMWMHL”) and, thus, had no duty to pay the truck drivers or helpers overtime pay.

“On the surface this sounds like it is a bad deal for truck drivers but in reality it ensures uniformity under the Motor Carriers Act and helps regulate interstate commerce,” said Romano. “In the trucking industry if you incent people to work more hours than the regulations allow, you have a danger issue. There is a reason this industry is regulated by the Secretary of Transportation. You can’t have truckers driving unlimited hours. This is the policy that the Kansas legislature intended to promote in enacting the language of the KMWMHL.”

The plaintiff, on behalf of himself and other truckers, brought this class action against the defendants Ford Moving & Storage Company, Inc. (“Ford”) and Nebraska Furniture Mart, Inc. (“NFM”) for alleged violations of the overtime provisions of the KMWMHL. The plaintiff was a truck driver who contracted to make furniture deliveries to NFM’s customers.

Lead trial counsel Anthony J. Romano, and attorney Robert J. Hingula of Polsinelli Shughart on behalf of NFM, filed a pre-Answer Motion to Dismiss Plaintiff’s claims against NFM on the basis that the KMWMHL was inapplicable to NFM. Specifically, NFM argued that because NFM was “subject to” the federal Fair Labor Standards Act (“FLSA”), it was not an “employer” under the KMWMHL. The KMWMHL specifically excludes from its definition of “employer” any “employer who is subject to the provisions of the Fair Labor Standards Act.”

In response, the plaintiff’s attorney argued that the Kansas Supreme Court opinion in Dollison v. Osborne County, 241 Kan. 374 (1987) controlled this case. In Dollison, the plaintiff argued, the Kansas Supreme Court held that if an employee is exempt from the FLSA’s overtime provisions, then the KMWMHL operates to “fill the void” in favor of the employee receiving overtime pay for hours worked in excess of forty-six hours in a week. In this case, the plaintiff conceded that he was exempt from the overtime requirements of the FLSA pursuant to the Motor Carrier Exemption. However, because the KMWMHL does not contain a similar exemption, Plaintiff argued that he was entitled to overtime under the KMWMHL.

Honorable Judge Daniel A. Duncan in the Wyandotte County District Court, affirmed Romano’s argument and ruled in favor of Nebraska Furniture Mart, holding that NFM was not an “employer” as defined by the KMWMHL and, thus, had no duty to pay the truck drivers or helpers overtime pay. The Kansas Court of Appeals affirmed the District Court’s ruling in a well-reasoned opinion available below. Specifically, the Appellate Court found Dollison distinguishable from the present case, and held that because NFM was an “employer” under the FLSA, under the plain language of the KMWMHL, NFM was not an “employer” under the Kansas Act and, thus, had no obligation under the law to pay the truck drivers and helpers overtime.

The case is Brown v. Ford Moving & Storage Company, Inc. and Nebraska Furniture Mart, Inc., Wyandotte District Court Case No. 08-cv-0347; Kansas Court of Appeals Case No.: 101,915.

To read the Kansas Court of Appeals’ decision, click here.

The Labor and Employment practice at Polsinelli Shughart has a national reach that includes more than 25 attorneys.

For more information contact Heather McMichael, Public Relations Manager, 816-395-0618 or hmcmichael@polsinelli.com

About Polsinelli Shughart PC

With approximately 470 attorneys, Polsinelli Shughart PC (www.polsinelli.com) is a national law firm that is a recognized leader in the areas of business litigation, financial services, real estate, business law, construction, life sciences and health care. Serving corporate, institutional and individual clients regionally, nationally and worldwide, Polsinelli Shughart is known for successfully applying forward-thinking strategies for both straightforward and complex legal matters. The firm has 13 offices located in Phoenix, Arizona; Denver, Colorado; Wilmington, Delaware; Chicago and Edwardsville, Illinois; Overland Park and Topeka, Kansas; Kansas City, St. Louis, Springfield and St. Joseph, Missouri; New York City; and Washington, D.C.