Dismissing a Lawsuit Against ACS

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The lawsuit against ACS is being handled by the National Union of Professional Coders & Engineers (NUCE) union. The lawsuit claims that ACS violated the Alaska Minimum Wage and Overtime Pay Act, and improperly classified many class members as non-exempt from the overtime pay provisions of the Alaska Minimum Wage and Overtime Pay Act (AWHA) and the Fair Labor Standards Act (FLSA). NUCE’s lawsuit further claims that this non-classification affected the payment of tipped employees, who are subject to Florida laws allowing tipped employees to be paid the same wages that are awarded to all other employees, regardless of their tipped count. NUCE argues that this violation deprived it of its rights to discuss the tipped minimum wage with its members and prevent bargaining for higher wages with its members. As well, according to NUCE, it was not adequately represented by counsel in negotiating favorable terms with the employer and was deprived of an opportunity to pursue damages or seek relief from discrimination.

Lawsuit Against ACS

Attorneys General Eric Holder and Sally Quinn serve as co-chairs of the United States Department of Labor’s Office of Fair Employment Practices, and they are responsible for the enforcement of wage and hour laws. The lawsuit was brought by the office of Public Advocate at HUD – the U.S. Department of Housing and Urban Development – and two other plaintiffs; plaintiffs’ former employer, ACS, and the NUCE. Public Advocate Eric Holder and former HUD Assistant secretary for labor and employment, Thomas Perez, are leading the charge of the lawsuit as federal lawyers.

The Office of Fair Employment Practices is part of the Department of Labor.

The complaint against ACS contends that it was in violation of the FLSA’s overtime provision, which requires employers to paying their employees for the number of times they are scheduled to work, instead of only for the number of hours actually worked. The complaint further claims that the company failed to timely pay its employees for the number of hours they worked beyond what was customary and did not make reasonable accommodations for their disability. The OCPHA has jurisdiction over both state and federal cases involving disability discrimination.

The complaint maintains that ACS discriminated against similarly situated employees of another corporation by requiring them to work additional hours beyond what was customary for that employee, and thereby deprived them of a reasonable accommodation required by that employee’s disability.

The District of Columbia Court denied the motion to dismiss, stating that the word “regardless of whether” in the phrase “the plaintiff was similarly situated to plaintiffs as a result of defendant’s conduct” meant that the defendant violated the disparate impact theory, which holds that if there is a reason to discriminate, then the conduct must be justified by relying on some other justification that does not harm the interests of those it intends to discriminate against. The court went on to state that although Congress intended the disparate impact theory to apply to all cases, it could not be assumed that such an effect was intentionally present. It also stated that even if the disparate impact principle was to apply to an airplane cabin attendant who, like a bus passenger, is not entitled to receive overtime pay because he is disabled, the same theory would still fail the scrutiny of strict liability.

The two lawyers who authored the complaint on behalf of Mr. Henry Lowry are attorneys.

Plaintiffs’ counsel is John B. Holleman, and John W. White, who are associated with the law firm of Price Waterhouse. The complaint was originally filed in the Circuit Court of Appeals of Maryland, but the United States Court of Appeals for the Fourth Circuit declined to allow the case to proceed forward. The Circuit Court of Appeals found that the lawsuit properly presented the issue of whether ACS engaged in conduct constituting unlawful discrimination.

In addition to seeking compensatory and statutory damages, the complaint seeks relief from what the plaintiffs call “social injury,” which the D.C. Circuit has found to include “the loss of opportunities, the degrading effects of stereotypes, and false perceptions of reality that have resulted from defendant ACS employees treating plaintiffs as though they are less-than-deserving of rehabilitation.”

In granting the motion to dismiss, the Third Circuit panel also declined to enjoin the employer from disciplining Mr. Henry Lowry, stating that although the complaint stated that ACS was guilty of anti-doping, it could not be considered an anti-doping violation in light of our precedent-based case law. The court did find that the evidence of de-claring was more than enough to establish that ACS’s blanket de-certification policy was therefore clearly illegal. Accordingly, the court denied the plaintiffs’ request for a judgment on damages.

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