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21 February 20232 minute read

DLA Piper secures trial win for client in significant wage and hour action

DLA Piper achieved a significant trial victory for client Las Vegas Sands Corp. and Sands Aviation, LLC (collectively “Sands”) in a Fair Labor Standards Act (FLSA) multi-plaintiff action in the United States District Court, District of Nevada.

Partners Brian Kaplan and Mary Dollarhide, who led the DLA trial team on behalf of Sands, said the Court’s decision is important given the dearth of authority examining the Highly Compensated Employee (HCE) exemption to the FLSA, and the degree to which employer restrictions placed on employees’ personal pursuits in between assignments could effectively convert such waiting time into compensable time.

The plaintiffs, five corporate jet pilots formerly employed by Sands, alleged they were misclassified as exempt employees and should have been eligible for overtime for any time worked over 40 hours per week. They also claimed entitlement to overtime for all periods of time they spent waiting for potential flight assignments when they were “on-call” or “stand-by” because they had to reply to phone calls and emails during such time and allegedly were not fully relieved from duty. The plaintiffs sought more than $19 million in damages from the defendants.

Following an eight-day bench trial, the Court vindicated Sands’ position in its entirety, holding that the plaintiffs were properly classified as exempt from the overtime provisions of the FLSA under the HCE exemption. The Court also held that even if the plaintiffs were not exempt, their waiting time in between flights was not compensable under the FLSA, applying a multi-factor balancing test endorsed by the Ninth Circuit to evaluate the degree to which the employees were able to engage in personal activities while on-call.  The Court thus concluded that the plaintiffs did not work overtime during the relevant period in any event.

In addition to Kaplan (New York and Short Hills) and Dollarhide (San Diego), the DLA Piper team included associate Kash Karmand (San Diego).