• Lisa McKellar Poursine

Personal Liability under the Fair Labor Standards Act for Overtime Violations in Florida

Whether an individual owner or corporate officer may be held individually liability for violating the Fair Labor Standards Act (“FLSA”) in a Florida federal court depends on the facts and circumstances of each case. As the Eleventh Circuit Court of Appeals stated in Alvarez Perez v. Sanford-Orlando Kennel Club, Inc.:


One cannot be held individually liable for violating the overtime provision of the FLSA unless he [or she] is an "employer" within the meaning of the Act. 29 U.S.C. § 207(a)(1); Donovan v. Grim Hotel Co., 747 F.2d 966, 971 (5th Cir. 1984). Section 203 broadly defines an employer as "any person acting directly or indirectly in the [**23] interest of an employer in relation to an employee." 29 U.S.C. § 203(d). Whether an individual falls within this definition "does not depend on technical or 'isolated factors but rather on the circumstances of the whole activity.'" Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235, 237 (5th Cir. 1973) (quoting Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 67 S. Ct. 1473, 1477, 91 L. Ed. 1772 (1947)).


515 F.3d 1150 (11th Cir. 2008). In Alvarez Perez, the Eleventh Circuited held that a corporate officer or owner who has operational control over the enterprise must have control over the day-to-day operation or have some direct responsibility for the supervision of the employee before being deemed an “employer” under the FLSA. Id. at 1160. Accordingly, the court there did not deem an officer who only went on-site to the business once a year as an “employer” under the FLSA.


In contrast, in Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299 (11th Cir. 2013), the Eleventh Circuit’s Court of Appeals noted that individual owners could be deemed to be “employers” under the FLSA even though they only owned about 22.5% of the company and were not on-site on a full-time basis. Id. 1314. In Lamonica, the owners went on-site to the company’s business headquarters at least a couple times a month and went to job sites to supervise the installation of hurricane shutters for the business in addition to telling the company’s employees that the company was unable to pay them after the business began to struggle. Id. at 1314-15. The Eleventh Circuit Court found that a reasonable jury could have found that the individual owners exercised control over "significant aspects of [the company's] day-to-day functions, including compensation of employees or other matters in relation to employees” and denied the individual defendants’ post-trial motions to alter or amend the judgment against them. Id. Likewise, in Hurst v. Youngelson, a federal district court within the Eleventh Circuit denied summary judgment on behalf of the individual defendants who had argued that they were not in control of the “day to day operations” of a strip-club where they determined the hours of operation, set the minimum charges for dances, hired their own children to be the “eyes” and “ears” of the club for them, and received nightly texts from the club manager as to the nightly revenue in their capacities as owners of the club. 354 F. Supp. 3d 1362 (N.D. Ga. 2019).


For a free evaluation as to the facts of your particular FLSA case, call McKellar Poursine, PLLC at (305) 600-4862.


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