Successful Defense of Municipality in FLSA Overtime Dispute

Jeffrey Bernstein, Vincent Curcio, and John Angelone v. Town Of Jupiter, Case No. 9:21-cv-81215 (S.D. Fla.)

Jones Foster attorneys across multiple practice groups combined their extensive knowledge and experience to successfully defend the Town of Jupiter in an attempted collective action lawsuit brought under the Fair Labor Standards Act (FLSA) in the United States District Court for the Southern District of Florida. The team included Shareholder and Chair of the Firm’s Land Use & Governmental Practice Group, Thomas J. Baird, who serves as the Town Attorney for the Town of Jupiter, Litigation Shareholder Michael J. Gore who served as Lead Counsel for the Town in the action, and Litigation Attorney Travis J. Foels.

The case was brought by three police officers who claimed they were entitled to unpaid overtime pay. Specifically, the officers claimed their overtime pay was not calculated correctly pursuant to the FLSA. Plaintiffs broadly claimed in their complaint that the Town “did not pay proper overtime compensation to Plaintiffs or to other similarly situated Jupiter Police Department law enforcement officers for work performed in excess of 171 hours in a 28-day work period.” The Town denied any liability, asserting throughout the lawsuit that Plaintiffs failed to articulate any actual FLSA violations. The Town also defended on grounds that it did not owe any of the Plaintiffs unpaid overtime, and had actually overpaid the Plaintiffs beyond what the FLSA requires.

Plaintiffs sought to certify the case as a “collective action,” a mechanism of the FLSA which allows similarly-situated individuals to “opt-in” to the lawsuit. Class certification is often used to pool resources and evidence, and to create leverage for plaintiffs by increasing the overall complexity and cost of the lawsuit. Certification of a collective action in this case would have involved approximately 100 police officers or more—each of whom would assert individual entitlement to overtime pay. If successful in expanding the case to a collective action, the officers’ collective claims would have totaled approximately $1 million in alleged unpaid overtime, excluding claims for attorney’s fees and costs available under the FLSA.

Plaintiffs twice moved for conditional class certification, ultimately resting their motions on generalized claims regarding “assignment pay” and “extra assignment pay”—payments made pursuant to the Collective Bargaining Agreement entered into between the officers’ union and the Town. A total of 59 officers filed “Notices of Consent” to join the action as opt-in plaintiffs, and Plaintiffs claimed that many more were waiting to join once the collective action was certified.

The Town, represented by Jones Foster, successfully defeated both motions, and the Honorable Judge Donald M. Middlebrooks denied Plaintiffs’ request for collective action certification. In a November 22, 2021 Order denying the most recent attempt, Judge Middlebrooks commented that among other deficiencies, “Plaintiffs still fail to clearly articulate their theory of how the Town violated the FLSA” and that their evidence was “insufficient” to support an FLSA violation. The Court concluded that due to Plaintiffs’ “broad generalizations and lack of specificity, I am not satisfied that the members of the proposed class indeed have FLSA claims along the vague lines of what Plaintiffs describe with respect to assignment pay and/or extra assignment pay.”

Judge Middlebrooks further rebuked Plaintiffs in a November 23, 2021 Order on a Motion to Compel filed by the Town, this time for their “evasive and incomplete” responses to discovery requests asking for the factual basis for their lawsuit. Judge Middlebrooks commented that he was “troubled that Plaintiffs, at this stage of litigation, have not articulated in sufficient detail the factual contentions underlying their claim.” The Court ordered Plaintiffs to provide the factual basis for their claims, and granted the Town’s request for attorneys’ fees and costs unnecessarily incurred in having to file its motion.

The Town ultimately settled the action for a nominal amount to avoid the burden and expense of further litigation and trial. In FLSA actions, a court must review and approve all settlement agreements before dismissing the case. In reviewing the proposed settlement terms in this case, Judge Middlebrooks stated that he was “not convinced” that Plaintiffs or their attorneys were entitled to the sums referenced in the settlement agreement. The Court emphasized that “Plaintiffs’ likelihood of success on the merits is doubtful,” and that by the Town’s calculations, which were never factually disputed by Plaintiffs, “Plaintiffs were either overpaid in overtime or not entitled to overtime.” Nevertheless, understanding that the “costs of proceeding through trial” were a motivating factor in settlement, the Court ultimately approved a settlement agreement and dismissed the action with prejudice.

About Thomas Baird
Tom Baird, Jones Foster’s Land Use & Governmental Co-Practice Group Leader, is a Florida Bar Board Certified specialist in City, County and Local Government and is certified as a Professional Planner by the American Institute of Certified Planners.

As a lawyer and a planner, Tom brings a unique depth and scope of knowledge to his practice. His 30 years of legal experience in complex land use, planning, zoning, and municipal law benefit his clients who range from municipalities and public entities to corporate businesses, real estate developers, and individual property owners.

Tom currently serves as the Town Attorney for the Towns of Jupiter and Lake Park, and provides legal counsel to the Firm’s municipal clients, which include the Towns of Gulf Stream, Jupiter Island, and Palm Beach. He serves as the General Counsel to the Westgate/Belvedere Homes Community Redevelopment Agency and the Jupiter and Lake Park Community Redevelopment Agencies, and he has been retained as special land use counsel for numerous municipalities throughout Palm Beach County, including the City of Boynton Beach, the Town of Juno Beach, and the Village of Golf. He serves as a Code Enforcement Special Magistrate for the Village of North Palm Beach and has served as a Special Master/Mediator in property rights cases.

About Michael Gore
Mike Gore, a member of Jones Foster’s Litigation and Corporate & Tax practice groups, focuses his practice in the areas of employment, construction, and securities law. Mike develops and implements strategies in complex litigation matters, and regularly assists clients in developing preventative measures designed to reduce or avoid disputes, including construction and employment contract review and drafting, conducting employment practices audits, and the drafting of employment policies and handbooks in accordance with state and federal employment laws.

Mike also uses his unique experience working in the Investor Protection Bureau at the New York State Attorney General’s Office to advise clients with complex and ever-changing securities laws and regulations. Mike has represented issuers of securities, brokerage firms, and investors.

About Travis Foels
Travis Foels is a member of Jones Foster's Litigation & Dispute Resolution practice group. He represents businesses, individuals, and municipalities in civil litigation with an emphasis on commercial litigation, real estate litigation, products liability, premises liability, and personal injury matters.

About Jones Foster
Jones Foster is a commercial and private client law firm headquartered in West Palm Beach, Florida. Established in 1924, the Firm has served as an integral part of South Florida’s growth and prosperity for nearly a century. Through a relentless pursuit of excellence, Jones Foster delivers original legal solutions that help clients, colleagues, and the community to move forward. The Firm’s attorneys focus their practice in Real Estate, Litigation & Dispute Resolution, Private Wealth, Trusts & Estates, Corporate & Tax, and Land Use & Governmental. For more information, please visit