Jenkins v. RBIS, LLC

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
STEVE JENKINS 	PLAINTIFF
v. 	Civil No. 4:23-cv-04059-SOH
RBIS, LLC 	DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Steve Jenkins (“Jenkins”), filed this action against the Defendant, RBIS, LLC
(“RBIS”), his former employer, alleging violations of the Fair Labor Standards Act, 29 U.S.C. §
201, et seq. (“FLSA”), and the Arkansas Minimum Wage Act, Ark. Code Ann. § 11-4-201, et seq.
(“AMWA”). (ECF No. 2, ¶ 1). RBIS filed a Motion for Summary Judgment, Brief in Support,
and Statement of Undisputed Material Facts on June 18, 2024. (ECF Nos. 19-21). Jenkins filed
his Response in opposition to the motion for summary judgment on July 16, 2024. (ECF Nos. 28-
29). RBIS filed its Reply on July 23, 2024. (ECF No. 32). On October 16, 2024, the Hon. Susan
O. Hickey, Chief United States District Judge, referred the case to the undersigned pursuant to 28
U.S.C. § 636(b)(1)(A) and Local Rule 72.1. 	(ECF No. 35). 	For the reasons and upon the
authorities discussed below, it is RECOMMENDED that the motion for summary judgment be
DENIED IN PART and GRANTED IN PART.
I. 	BACKGROUND
RBIS is a construction contractor that builds and maintains infrastructures, such as sewer
and water systems which primarily serve municipalities and other government entities. (ECF No.
21, ¶ 1). The company relies heavily on its equipment and its equipment operators. (ECF No. 21,
¶ 2). It must keep the equipment functioning in order to complete construction projects on time.
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(Id.). To that end, RBIS hired Jenkins in March 2019. (ECF 21, ¶ 5; Jenkins Deposition, ECF No.
29-1, at 48).
According to Jenkins, he applied for a position as a mechanic at RBIS, and he met with
Billy Krack and Rick Davis about the job. (Jenkins Deposition, ECF No. 29-1, at 47). Billy Krack
and Rick Davis are the top executives at RBIS and are responsible for hiring, firing, and other
management decisions within the company. (ECF No. 21, ¶ 3). Jenkins testified that during his
first meeting with Krack and Davis, they discussed his seven years of training in mechanical
maintenance as a Merchant Marine and asked what it was going to take for Jenkins to work for
them. (Jenkins Deposition, ECF No. 29-1, at 14, 47-48). Jenkins understood his responsibilities
would consist of preventive maintenance and repair of the equipment used in the company’s
construction projects. (Id. at 47).
Although the parties dispute whether Jenkins was hired as a “shop foreman,” or a
“mechanic,” it is undisputed that he worked in the company’s shop and off-site at various customer
locations repairing and servicing the company’s industrial machines and equipment. (ECF No. 2,
¶ 22; ECF No. 6, ¶ 16; ECF No. 21, ¶¶ 9, 16; ECF No. 29, ¶¶ 5, 9). In that capacity, Jenkins was
provided a company truck, keys to the facility, and a credit card, which he used for purchases he
deemed necessary to the performance of his work, such as purchasing supplies and equipment
required for repairs or maintenance. (ECF No. 21, ¶¶ 10, 11; ECF No. 29, ¶¶ 10-11). It is also
undisputed that in the performance of his work, including in the shop and when he was working
on mechanical failures of equipment off-site, Jenkins had the assistance of other employees and
would direct the course of their work when they were assisting him. (ECF No. 21, ¶¶ 14-17; ECF
No. 29, ¶¶ 14-17; Jenkins Deposition, ECF No. 29-1, at 55-61, 70-71, 135-136, 139-140).
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In the initial months of his employment, there were some weeks in which Jenkins worked
less than 40 hours, and some in which he worked more than 40 hours. (ECF No. 21, ¶ 6; ECF No.
29, ¶ 6). During that time, RBIS paid him an hourly wage of $18, and it compensated him with
overtime pay at one-and-a-half times his hourly wage for work he performed more than 40 hours
in a week. 	(ECF No. 21, ¶ 7; ECF No. 29, ¶ 7). 	Because 40 hours of work and pay were not
consistently available, however, Jenkins requested, and RBIS approved, that he become a salaried
employee several weeks after he had begun working at RBIS. (Birmingham Declaration, ECF No.
19-2, ¶ 7; ECF No. 21, ¶¶ 18, 19, 22; ECF No. 29, ¶¶ 18, 19, 22). Jenkins’s responsibilities did
not change, and he was guaranteed weekly compensation in the amount of $720, which was the
equivalent of 40 hours of work at a wage of $18 per hour. (Birmingham Declaration, ECF No. 19-
2, ¶ 7; ECF No. 21, ¶¶ 18, 22; ECF No. 29, ¶¶ 18, 22).
According to Jenkins, he often worked more than 40 hours per week while he was a salaried
employee at RBIS, but he was not paid overtime wages for the work he performed over 40 hours.
He testified in discovery that “[p]robably within the first couple of months” of his tenure at RBIS,
he began complaining to Rick Davis about working too much and needing time off, but his
complaints were rebuffed. (Jenkins Deposition, ECF No. 29-1, at 78-79, 126-127). He did not
ask for overtime pay because, as a salaried employee, he did not have a clear belief that he was
entitled to it. (Id. at 81, 127-128, 139). According to Jenkins, there were 10 weeks during the later
period of his employment with RBIS when he recorded the amount of time he worked each day in
order “to show Rick on paper that he was worth more money.” 	(Id. at 82-85, 110-115). 	His
occasional requests for a raise were met with a negative response. (Id. at 85). He indicated that
he did not request overtime because he thought that “salary was salary.” 	(Id. at 127-128, 139).
Jenkins continued to work at RBIS, earning $720 per week regardless of the number of hours he
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worked, until he was terminated in April 2023. (ECF No. 21, at 4; ECF No. 29, at 6, 8; Jenkins
Deposition, ECF No. 29-1, at 78, 139-140).
On June 5, 2023, Jenkins filed his original Complaint against RBIS, alleging that he is
owed overtime wages for weeks in which he worked more than 40 hours and was not compensated
at one-and-a-half times his hourly rate for the overage. 	(ECF No. 2). 	He alleges that RBIS
misclassified him as an exempt employee and willfully violated the overtime-pay requirements of
the FLSA and the AMWA. (ECF No. 2, ¶¶ 27-28, 49, 51, 55, 58, 65, 69). RBIS filed its Answer
on June 23, 2023. (ECF No. 6). RBIS admits that Jenkins was employed at its facility during the
relevant period addressed in the Complaint and that it classified him as an exempt employee. (Id.
at ¶¶ 14, 20). RBIS further admits that jurisdiction is proper under the Court’s federal question
and supplemental jurisdiction. 28 U.S.C. §§ 1331, 1367. (ECF No. 6, ¶ 3). RBIS otherwise denies
the substance of Jenkins’s allegations and asserts affirmative defenses of FLSA exemption, statute
of limitations, and good faith. (ECF No. 6, at 1-8).
II. 	LEGAL STANDARD
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact, and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). 	It is initially the moving party’s burden to demonstrate the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is “material”
when its resolution might affect the outcome of the suit under the governing substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). 	When the moving party has
carried its initial burden under Rule 56(c), the non-moving party must “come forward with
‘specific facts showing that there is a genuine issue for trial.’” 	Matsushita Elec. Indus. Co. v.
Zenith Radio, 475 U.S. 574, 587 (1985) (quoting Fed. R. Civ. P. 56(e)) (emphasis in Matsushita).
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The non-moving party sustains this burden by showing the existence of factual issues that are
sufficient to allow a reasonable jury to return a verdict in favor of either party. Anderson, 477 U.S.
at 250. “The evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor.” Id. at 255.
III. 	DISCUSSION
RBIS argues it is entitled to summary judgment because Jenkins’s job fell within the
executive exemption from the overtime requirements in the FLSA and the AMWA. Failing that
affirmative defense, RBIS seeks partial summary judgment, arguing that the FLSA’s two-year
statute of limitations applies because any overtime violation was not willful, that an award of
liquidated damages is improper because RBIS acted in good faith, and that any damages for unpaid
overtime should be calculated using the fluctuating workweek method, rather than the ordinary
time-and-a-half method. (ECF No. 19, ¶¶ 3-4; ECF No. 20, at 5-12).
A. 	Executive Exemption
Both the FLSA and the AMWA require employers to pay their employees overtime wages
of no less than one-and-a-half times their regular rate of pay for work performed in excess of 40
hours in a week. 29 U.S.C. § 207(a); Ark. Code Ann. § 11-4-211(a). Certain categories of workers,
however, are exempt from these overtime protections. Relevant here, the overtime requirements
“shall not apply to … any employee employed in a bona fide executive … capacity,” as “such
terms are defined and delimited” by agency regulations. 29 U.S.C. § 213(a)(1).1
1 Because the AMWA exemption is aligned with the federal exemption and the parties draw no
distinctions between them, the Court applies the same analysis to Jenkins’s parallel state and
federal claims. 	See Helmert v. Butterball, LLC, 805 F. Supp. 2d 655, 663 n.8 (E.D. Ark. 2011)
(construing FLSA and AMWA claims together where premised on the same facts and parties drew
no distinction between the requirements of the state and federal acts); Cummings v. Bost, Inc., 218
F. Supp. 3d 978, 985-86 (W.D. Ark. 2016) (applying same exemption analysis to parallel FLSA
and AMWA claims). The AMWA expressly provides that its overtime protections do not apply to
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Pertinent regulations provide that the executive exemption applies to any employee who
is:
(1) Compensated on a salary basis … at a rate of not less than $684
per week…; (2) Whose primary duty is management of the
enterprise 	… 	or 	of 	a 	customarily 	recognized 	department 	or
subdivision thereof; (3) Who customarily and regularly directs the
work of two or more other employees; and (4) Who has the authority
to 	hire 	or 	fire 	other 	employees 	or 	whose 	suggestions 	and
recommendations as to the hiring, firing, advancement, promotion
or any other change of status of other employees are given particular
weight.
29 C.F.R. § 541.100(a). All four requirements must be met to qualify for this exemption.
Whether an employee’s work activities exempt him from the overtime benefits of the FLSA
is an issue of law. Jarrett v. ERC Properties, Inc., 211 F.3d 1078, 1081 (8th Cir. 2000) (citing
Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986)). Underlying disputes about the
nature and significance of an employee’s duties, and about the amount of time devoted to those
duties, present factual questions. See Jarrett, 211 F.3d at 1081 (“[d]isputes regarding the nature
of an employee’s duties are questions of fact”). 	See also Grage v. Northern States Power Co.-
Minnesota, 813 F.3d 1051, 1054 (8th Cir. 2015) (noting the amount of time devoted to exempt
duties, and the significance of those duties, present factual questions). 	The exemption is an
affirmative defense on which the employer bears the burden of proof. Grage, 813 F.3d at 1054;
Madden v. Lumber One Home Center, Inc., 745 F.3d 899, 903 (8th Cir. 2014). And the Court gives
FLSA exemptions a “fair reading,” not a narrow one. See Coates v. Dassault Falcon Jet Corp.,
any employee who is exempt from the overtime requirements of the FLSA pursuant to, inter alia,
the exemptions in 29 U.S.C. § 213(a)(1). See Ark. Code Ann. § 11-4-211(d). It further provides
that courts construing its wage-and-hour provisions “may look for guidance to state and federal
decisions interpreting the [federal FLSA,]” as persuasive authority. Ark. Code Ann. § 11-4-218(f).
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961 F.3d 1039, 1047 (8th Cir. 2020) (citing Encino Motorcars LLC v. Navarro, 584 U.S. 79, 88
(2018)).
The parties do not dispute the first factor, as Jenkins’s salary of $720 per week exceeded
the required minimum salary threshold during the challenged period.2 Instead, the dispute between
the parties centers on the nature of Jenkins’s work activities relative to factors two, three, and four.
Because the undersigned finds that a genuine dispute of material fact exists as to Jenkins’s primary
duty under factor two, summary judgment is foreclosed, and there is no need to address the
remaining factors. See Marzuq v. Cadete Enterprises, Inc., 807 F.3d 431, 447 (1st Cir. 2015); see
also Buford v. Superior Energy Servs., LLC, No. 4:17-cv-00323-KGB, 2018 WL 2465469, at 8-
11 (E.D. Ark. June 1, 2018) (denying summary judgment on executive exemption where genuine
dispute of material fact remained as to less than all four factors of executive-exemption test).
Under the second factor of the executive exemption, RBIS must prove that Jenkins’s
“primary duty [was] management of … a customarily recognized department or subdivision [of
the enterprise in which he was employed.]” 29 C.F.R. § 541.100(a)(2). The “primary duty” of an
employee’s job is “the principal, main, major or most important duty that the employee performs.”
29 C.F.R. § 541.700(a). And the term “management” refers to:
activities such as interviewing, selecting, and training of employees;
setting and adjusting their rates of pay and hours of work; directing
the work of employees; maintaining production or sales records for
use in supervision or control; appraising employees’ productivity
and efficiency for the purpose of recommending promotions or other
changes in status; handling employee complaints and grievances;
disciplining 	employees; 	planning 	the 	work; 	determining 	the
techniques to be used; apportioning the work among the employees;
determining the type of materials, supplies, machinery, equipment
or tools to be used or merchandise to be bought, stocked and sold;
controlling the flow and distribution of materials or merchandise
2 The threshold salary level for the exemption increased from $455 to $684 on January 1, 2020.
See 29 C.F.R. § 541.100(a) (effective Jan. 1, 2020, through June 30, 2024).
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and supplies; providing for the safety and security of the employees
or the property; planning and controlling the budget; and monitoring
or implementing legal compliance measures.
29 C.F.R. § 541.102.
When deciding whether management was an employee’s “primary duty,” the decision
“must be based on all the facts in a particular case, with the major emphasis on the character of the
employee’s job as a whole.” 	29 C.F.R. § 700(a). 	Factors to consider include the relative
importance of the exempt duties as compared with other types of duties; the amount of time spent
performing exempt work; the employee’s relative freedom from direct supervision; and the
relationship between the employee’s salary and the wages paid to other employees for the kind of
non-exempt work performed by the employee. 	Id. 	These factors demonstrate that the central
question when determining the applicability of the exemption is not simply whether Jenkins
performed duties that can be categorized as exempt management activities; it is whether Jenkins’s
exempt management duties, rather than his non-exempt mechanic duties of repairing and
maintaining RBIS equipment, constituted the “principal, main, major or most important duty” that
he performed for RBIS. On that issue, the parties are divided.
RBIS does not dispute that “Jenkins’ duties were essential to the ongoing performance of
the company, which required its machinery to be operable for the survival of the business.” (ECF
No. 32, at 4). It is further undisputed that Jenkins worked in the company’s shop and off-site at
various customer locations repairing and servicing the company’s industrial machines and
equipment. (ECF No. 2, ¶ 22; ECF No. 6, ¶ 16; ECF No. 21, ¶¶ 9, 16; ECF No. 29, ¶¶ 5, 9). RBIS
nevertheless insists that Jenkins’s primary duty was management because he exercised discretion
in acquiring inventory and material necessary for repair and maintenance of company equipment,
posted policies concerning shop safety, at times made recommendations related to hiring and firing
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that were followed, and supervised a full-time shop hand and “several other employees who would
float in and out of the shop” on a temporary basis. (ECF No. 20, at 3; ECF No. 32, at 4).
To make its case on the issue of Jenkins’s actual work duties and the primacy of
management, RBIS offers little more than the foregoing broad, conclusory assertions, with no
detail about Jenkins’s actual day-to-day work activities and the extent of his non-exempt manual
labor relative to his exempt management activities. (ECF No. 20, at 3; ECF No. 32, at 4). RBIS
relies on the declaration of its office manager, Lexie Birmingham (Declaration of Lexie
Birmingham, ECF No. 19-2), and on excerpts from Jenkins’s sworn testimony (Jenkins
Deposition, ECF No. 29-1). (ECF No. 21, ¶¶ 14-17).
Birmingham 	was 	responsible 	for 	maintaining 	payroll, 	other 	employee-related
documentation, and resource management. (Declaration of Lexie Birmingham, ECF No. 19-2, ¶
3). According to her declaration, Jenkins “was primarily responsible for safety in the shop[,]” and
he “supervised … the shop hand position” and “the several other employees who would float in
and out of the shop.” (Id. at ¶ 6; ECF No. 21, ¶14). Birmingham further states that when working
off-site on projects involving, for example, a mechanical failure of equipment, Jenkins “had the
authority to direct others to assist in the project, and it [was her] understanding that he did so.”
(ECF No. 19-2, ¶ 6; ECF No. 21, ¶ 16). Using regulatory terms, Birmingham also states, without
elaboration, that Jenkins “regularly and customarily directed the work of others,” and she states he
“at times made hiring and firing recommendations which were followed.” (ECF No. 19-2, ¶¶ 5,
6; ECF No. 21, ¶¶ 12, 17).
Birmingham offers no details, however, about what Jenkins’s actual, day-to-day duties
entailed. 	She describes none of Jenkins’s activities of “supervision” or “direction” of other
employees or the extent to which he engaged in manual labor, nor does she offer any details about
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the nature of the assistance that other employees provided Jenkins when he was repairing
equipment in the field, how many of them “floated in and out of the shop,” how often they were
there, and for how long. 	See Fife v. Harmon, 171 F.3d 1173, 1175-76 (8th Cir. 1999) (when
determining whether the “bona fide” exemption applies to a particular employee, the Court
considers the employee’s day-to-day activities and responsibilities). 	The most specific work-
activity information Birmingham provides is the statement that she “observed Mr. Jenkins
‘counseling’ (i.e., yelling at) other employees in the shop concerning his requirements for working
there.” (Declaration of Lexie Birmingham, ECF 19-2, ¶ 6). But again, her statement is otherwise
bereft of the details necessary to determine whether it involved actual management activities and,
if so, the extent to which it may have done so relative to Jenkins’s non-exempt work.
To fill the gaps in Birmingham’s declaration, RBIS relies on Jenkins’s deposition. RBIS
first cites three photographs introduced as exhibits to Jenkins’s deposition, and it suggests they
show he was responsible for safety policies in the shop. 	(ECF No. 21, ¶ 15). 	Two of these
photographs depict signs which state, “Do not spit on the floor!!!” 	(ECF No. 19-1, at 30-31).
Jenkins testified the signs were not safety policies but were posted because someone was spitting
on the floor and, as a mechanic who must lie on the floor beneath vehicles and equipment, he
wanted it to stop. (Jenkins Deposition, ECF No. 29-1, at 119-121; ECF No. 29, ¶ 9). He said he
had “come unglued” and confronted employees “[v]enomously” about it and put up the signs.
(Jenkins Deposition, ECF No. 29-1, at 120). The third photograph depicts a “no trespassing sign”
posted on the property, which Jenkins said he thought he had put up at the direction of Billy Krack
due to problems with theft. 	(Id. at 33, 121-122). 	Regarding influence over hiring-and-firing
decisions, RBIS further cites deposition testimony in which Jenkins acknowledged that he had
made two hiring recommendations that Davis followed; said he had not been involved in other
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hires; and acknowledged he had suggested that another employee, who was eventually let go, was
not capable of performing his assigned task of operating heavy equipment. (Jenkins Deposition,
ECF No. 29-1, at 58-59, 63-64). These and other undisputed facts on which RBIS relies are not
inconsistent with Jenkins’s attestations that his primary duty was the non-exempt manual labor he
performed repairing and maintaining RBIS’s vital equipment. (ECF No. 20, at 3; ECF No. 32, at
4).
For his part, Jenkins insists that his primary duty was to service and repair equipment in
the shop and in the field, as directed by Rick Davis. (ECF No. 29, ¶ 9). He does not dispute that
in the performance of his work, including in the shop and when he was working on mechanical
failures of equipment off-site, he sometimes had the assistance of other employees and would
direct the course of their work when they were assisting him. (ECF No. 21, ¶¶ 14-17; ECF No.
29, ¶¶ 14-17; Jenkins Deposition, ECF No. 29-1, at 56-62, 71-72, 136-137, 140-141). He asserts,
however, that he did most of his mechanical work alone and did not regularly direct anyone else’s
activities. (ECF No. 29, ¶ 16). He testified that he was called multiple times at home, after having
put in a full day’s work, to handle work on equipment that was coming in and had to be ready the
next day. 	(ECF No. 29-1, at 80). 	He also asserts that he was the only employee who was
consistently present in the mechanic shop, and that Rick Davis expressly told him he did not have
an assistant or “direct report” and that the “yard hands” were Davis’s helpers, not his. (Id.; see
also ECF No. 29-1, at 54-58) 	According to Jenkins, if he needed someone to help him lift a heavy
object or sweep the shop, he had to have Davis’s permission. (ECF No. 29, ¶ 9).
It is evident from the record before the Court that issues of material fact remain in dispute
as to what job duties Jenkins performed on a daily basis and the amount of time he spent
performing exempt duties versus non-exempt duties. The undisputed facts lack sufficient detail
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about, for example, how often Jenkins directed the work of other employees, the nature of that
work, and how much time Jenkins spent repairing and maintaining equipment. 	As such, the
undersigned cannot say the undisputed facts are so one-sided that they “would require a directed
verdict for the moving party.” Anderson, 477 U.S. at 251 (citation and quotation marks omitted).
Summary judgment should be denied on this issue.
B. 	Statute of Limitations
RBIS asserts the statute of limitations as an affirmative defense to Jenkins’s recovery of
damages for any FLSA violations. An action under the FLSA is governed by a two-year statute
of limitations, unless the action arises from a willful violation, in which case the actionable period
and, hence, a plaintiff’s potential period of recovery, is three years. See 29 U.S.C. § 255(a). An
FLSA violation is willful if “the employer either knew or showed reckless disregard for the matter
of whether its conduct was prohibited by the statute.” McLaughlin v. Richland Shoe Co., 486 U.S.
128, 133 (1988). 	This standard requires more than negligence or a good-faith but incorrect
assumption that a pay plan complied with the FLSA. Id. at 135.
Jenkins seeks to recover under the three-year limitations period, alleging that RBIS acted
willfully because it “knew or showed reckless disregard” for the matter of whether its conduct
violated the FLSA. (ECF No. 2, ¶¶ 2, 51, 53, 58). In its motion for partial summary judgment on
this issue, RBIS first asserts that there is no genuine issue of material fact as to willfulness because
the undisputed facts demonstrate that Jenkins was exempt from the overtime requirements. (ECF
No. 20, at 8; ECF No. 32, at 6). It is true that if the undisputed facts demonstrate that Jenkins was
exempt from the FLSA overtime requirements, the failure of RBIS to pay him overtime as a
salaried employee cannot have been a violation at all. As discussed above, however, a genuine
issue of material fact remains as to the applicability of the executive exemption because the
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summary judgment record does not demonstrate that management was Jenkins’s primary duty as
an RBIS employee. For that reason, partial summary judgment in favor of RBIS on the two-year
statute of limitations necessarily fails.
RBIS also asserts there is no genuine dispute concerning the willfulness of its nonpayment
because Jenkins requested to be paid a salary; RBIS accommodated the request knowing there
would be weeks Jenkins would work more than 40 hours and weeks he would work less; and
Jenkins “was effectively the ‘boss’ of the shop[.]” (ECF No. 20, at 8; ECF No. 32, at 6). RBIS
appears to suggest that the facts indisputably indicate no more than negligence or an incorrect
assumption on its part that Jenkins was not entitled to overtime because Jenkins was at least
arguably exempt, since he was “effectively the ‘boss’ of the shop”; he was responsible for the
change in his pay plan; and RBIS accommodated the change, knowing that there might be some
weeks in this arrangement would not be financially beneficial to RBIS because Jenkins might work
fewer than 40 hours.
The undersigned does not agree, as RBIS asserts, that this argument demonstrates a
complete absence of facts from which a reasonable jury might infer a knowing violation or reckless
disregard of the statutory requirements. (ECF No. 20, at 8; ECF No. 32, at 6) (stating “there are
no available facts to demonstrate that RBIS willfully or knowingly violated the FLSA”). To the
contrary, it is undisputed that RBIS hired Jenkins and initially paid him on an hourly basis, with
overtime compensation at one-and-a-half times his regular hourly rate for work performed more
than 40 hours in a week. 	(ECF No. 21, ¶¶ 5-7). 	Thus, RBIS treated Jenkins as a non-exempt,
hourly employee entitled to overtime, despite its current assertion that it classified him as an
exempt employee because he was a foreman with supervisory responsibilities. 	It is further
undisputed that weeks after Jenkins was hired, RBIS allowed him the option to be paid on a salary
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basis with no change in his duties, and it calculated the fixed amount of his salary based on his
hourly rate of pay. 	(Id. at ¶¶ 18, 19, 22). 	That is, RBIS paid Jenkins $720 per week, which it
calculated by multiplying his hourly rate of $18 times 40 hours, and it paid him only that amount
even if he worked more than 40 hours. (Id. at ¶ 18).
Although RBIS did not initiate the change in pay status from hourly to salaried, it
nevertheless, and without explanation, stopped paying Jenkins overtime even though there had
been no material change in his previous duties, which RBIS treated as non-exempt. The summary
judgment record is completely silent about why RBIS did not continue to treat Jenkins as non-
exempt after authorizing him to elect a salary option with no change in his duties. Further, RBIS
made Jenkins responsible for keeping track of his time worked, rather than doing so itself. (ECF
No. 21, ¶ 7). These facts are relevant to the issue of whether Jenkins’s employers acted willfully
in failing to compensate for overtime. See Buck v. Lindsey Mgmt. Co., No. 4:13-cv-000676-KGB,
2014 	WL 	3446779, 	at 	*5 	(E.D. 	Ark. 	July 	15, 	2014) 	(employer’s 	potentially 	deficient
recordkeeping and failure to pay overtime following its change in employee’s pay status, with no
material change in duties, is relevant to issue of whether it knowingly or recklessly disregarded
statutory requirements); see also Elwell v. Univ. Hosps. Home Care Servs., 276 F.3d 832, 844 (6th
Cir. 2002) (employer’s recordkeeping practices are relevant to claims that employer acted willfully
in failing to compensate for overtime).
On this record, the undersigned cannot determine, as a matter of law, that RBIS employers
did not act willfully, and the record does not demonstrate the complete absence of a genuine
dispute on the issue of willfulness. The inquiry into willfulness is heavily fact-driven; thus, the
state of mind of the employer’s decisionmakers must be explored, and credibility assessments will
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be necessary. Smith v. Frac Tech Servs., LLC, No. 4:09-cv-00679-JLH, 2011 WL 96868, at *24
(E.D. Ark. Jan. 11, 2011) (citing Moreno v. United States, 82 Fed. Cl. 387, 397-398 (2008)).
For these reasons, partial summary judgment on the two-year statute of limitations should
be denied.
C. 	Liquidated Damages
RBIS seeks partial summary judgment to preclude an award of liquidated damages in the
event it is found liable for violations of the FLSA and the AMWA. An employer who violates the
overtime provisions of the FLSA “shall be liable to the employee … in the amount of ... unpaid
overtime compensation ... and in an additional equal amount as liquidated damages.” 29 U.S.C. §
216(b); see also Ark. Code Ann. § 11-4-218(a)(1),(2) (noting the same for violations of the
AMWA). In its discretion, however, a court may reduce or remit an award of liquidated damages
if the employer satisfactorily shows that it acted in good faith and that it had reasonable grounds
for believing that it was not in violation of the FLSA. Braswell v. City of El Dorado, 187 F.3d
954, 957 (8th Cir. 1999). 	The employer bears the burden of proving both good faith and
reasonableness. Hultgren v. County of Lancaster, 913 F.2d 498, 509 (8th Cir. 1990). And “the
burden is a difficult one, with double damages being the norm and single damages the exception.”
Chao v. Barbeque Ventures, LLC, 547 F.3d 938, 941-942 (8th Cir. 2008) (cleaned up).
To satisfy the subjective requirement of “good faith,” the employer must establish “the
honest intention to ascertain and follow the dictates of the FLSA.” Id. at 942 (quoting Hultgren,
913 F.2d at 509). This requires that the employer “show that he took affirmative steps to ascertain
the Act’s requirements, but nonetheless, violated its provisions.” Chao, 547 F.3d at 942 (cleaned
up). 	The employer also must show that its position on the challenged compensation issue was
objectively reasonable. Id.
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Partial summary judgment allowing RBIS to avoid the possibility of liquidated damages
should be denied. In support of its request, RBIS largely repeats its previous argument, asserting
that Jenkins “held a leadership position which should be exempt” from the overtime requirements,
and that it granted Jenkins request to be paid a salary “as a good faith gesture.” (ECF No. 20, at
9). It further speculates that “there is a fair likelihood that RBIS achieved less work for more pay
when it granted Mr. Jenkins’s request to receive a salary.” (Id.). These are not facts, much less
undisputed facts, nor do these assertions directly address the challenged conduct that is at issue
here. The central question for purposes of assessing good faith and reasonableness is why RBIS
stopped paying Jenkins an overtime premium when he opted to become a salaried employee, given
that his duties had not changed, and he had previously been treated as a non-exempt employee
earning overtime premiums for work performed more than 40 hours in a week. RBIS has offered
no facts on summary judgment to explain the incongruity. In fact, RBIS simply underscores its
inconsistent treatment of Jenkins, stating “it is clear RBIS would have paid Jenkins hourly if
requested[,]” the implication being that RBIS would have continued to offer Jenkins overtime
premiums if only he had not opted to be paid a salary. What remains unclear is the reason RBIS
believed this practice comported with the FLSA and the AMWA. On the limited record before
the Court, it is not possible to determine, as a matter of law, that RBIS’s allegedly offending
conduct was undertaken in good faith and was objectively reasonable.
Partial summary judgment should be denied on this issue.
D. 	Damages Calculation for Fluctuating Weekly Hours
As previously noted, an employee who works more than 40 hours in any given week is
entitled to compensation at “one and one-half times the regular rate at which he is employed” for
all hours worked greater than 40. 29 U.S.C. § 207(a)(1); see also Ark. Code Ann. § 11-4-211(a)
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(stating an identical requirement under the AMWA). When a method of payment other than an
hourly rate is used—such as a fixed weekly salary—the amount of overtime that is to be paid must
be calculated by converting the weekly compensation to a regular hourly rate for each week.
Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 580 (1942), superseded on other grounds
by statute as stated in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128 n. 22 (1985); 29
C.F.R. § 778.109. 	RBIS has moved for partial summary judgment, arguing that the fluctuating
workweek method should apply to compute Jenkins’s regular hourly rate of pay for purposes of
determining the overall backpay compensation that would be due if RBIS were found liable.
In Missel, the Supreme Court noted that the computation of a salaried employee’s “regular
rate” will depend upon the arrangement between the employee and employer as to how many hours
the salary is intended to compensate. 316 U.S. at 579-581. The Court held that where it is agreed
that the employee will be paid a fixed regular salary for all hours worked, even when the hours
worked will fluctuate above 40 in some weeks, his “regular rate” of pay for a given week is
determined by dividing the fixed salary by the total number of hours he actually worked in that
week. Id. at 580. This means that in cases in which the employee is paid a fixed weekly salary
for hours of work that vary from week to week, the employee’s “regular rate of pay … will
necessarily vary from week to week according to the number of hours worked.” Landreth v. Ford,
Bacon, & Davis, 147 F.2d 446, 448 (8th Cir. 1945) (discussing the holding in Missel). When the
“regular rate” is calculated in this way, the salaried employee who has received his fixed salary
for all hours worked in a given week has been paid his “regular rate” for all hours, including any
overtime hours. Since he has already been compensated at the regular rate for his overtime hours,
the employee is due only the remaining overtime premium of one-half his “regular rate” of pay for
each hour of overtime he worked.
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Jenkins opposes RBIS’s motion for partial summary judgment on the application of the
fluctuating workweek formula on two grounds. 	First, Jenkins contends that the fluctuating
workweek formula does not apply because he and RBIS “never clarified” whether his fixed salary
encompassed overtime pay. 	(ECF No. 28, at 8). 	Second, Jenkins suggests that the fluctuating
workweek method for calculating overtime cannot be used as a remedial measure for calculating
damages in misclassification cases. (Id. at 8-9).
Regarding the first issue, Jenkins contends that although he never received overtime after
he began receiving a salary, the issue of overtime was “never clarified between him and RBIS”
and so “the fourth factor is not satisfied.” (ECF No. 28, at 8). The intended reference is not clear,
but the Court assumes Jenkins is referring to the fourth factor of 29 C.F.R. § 778.114(a), which
requires a “clear mutual understanding” between the employer and employee that the fixed wage
will constitute the employee’s regular pay for all hours worked in any given week, including any
hours worked greater than 40. In a well-reasoned decision concerning the source of authority for
the remedial use of the fluctuating workweek, the Seventh Circuit has explained that § 778.114(a)
is not a remedial rule and does not supply the proper analytical framework for a determination of
damages for an employer’s breach of its obligation to pay an overtime premium. Urnikis-Negro
v. Am. Family Prop. Servs., 616 F.3d 665, 675-679 (7th Cir. 2010). Instead, Missel is the source
of authority for the retrospective calculation of damages using the fluctuating workweek method.
Smith, 2011 WL 96868, at *24 (citing Urnikis-Negro, 616 F.3d at 681 and finding § 778.114(a)
inapplicable to the calculation of damages). Under Missel, the employee’s regular rate of pay for
purposes of calculating damages “turns on what the parties agreed the employee would be paid for
the hours he actually worked (so long as the rate is not lower than the minimum wage).” Urnikis-
Negro, 616 F.3d at 680.
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Here, the undisputed facts demonstrate that Jenkins’s salary was intended to compensate
him for all hours worked in a week, including those exceeding 40. Jenkins affirmatively sought
the option to be paid a fixed salary of $720 per week, which he understood required a minimum of
40 hours of work. 	(ECF No. 21, ¶ 18; Jenkins Deposition, ECF No. 29-1, at 73, 80). 	In his
deposition, Jenkins acknowledged his understanding that he might work more than 40 hours some
weeks, and less than 40 other weeks, and was guaranteed the salary of $720 per week. (Id. at 74-
75, 78). 	That Jenkins understood this to mean that he would get no additional monetary
compensation for any hours exceeding 40 per week is bolstered by his testimony that he believed
if he worked over 40 hours in any given week, he would be able to take time off the following
week. (Id. at 74-75). He further indicated that he consistently worked over the 40-hour minimum
during his tenure, and although he complained about working too much and sought a raise on that
basis, he indicated that he did not think he was entitled to overtime because “salary was salary.”
(ECF No. 29-1, 74, 79 130, 138). These undisputed facts indicate Jenkins’s clear understanding
that he would receive his fixed salary as compensation for all hours worked, including those
exceeding 40 in any given week.
Regarding Jenkins’s second point, the Eighth Circuit has held—in keeping with Missel—
that the fluctuating workweek formula is the proper method for calculating damages for overtime
violations that result from misclassifying an employee as exempt. See Yellow Transit Freightlines,
Inc. v. Balven, 320 F.2d 495, 499-500 (8th Cir. 1963) (holding overtime violation resulting from
misclassification under motor-carrier exemption warranted damages calculation at one-half the
employee’s “regular rate” rather than one-and-a-half times that rate); Anderson v. Fed. Cartridge
Corp., 156 F.2d 681, 685 (8th Cir. 1946) (holding damages calculation using the fluctuating
workweek method applied to violation resulting from misclassifying employees under the
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executive and administrative exemptions); Landreth, 147 F.2d at 448 (applying fluctuating
workweek method to violation resulting from misclassification as supervisor). As another district
court has noted, these decisions are binding precedent. Smith, 2011 WL 11528539, at 35.
Numerous other courts, including courts of appeals and several district courts within the
Eighth Circuit, also have concluded the fluctuating workweek method is properly applied to
calculate damages for misclassification violations. 	Desmond v. PNGI Charles Town Gaming,
L.L.C., 630 F.3d 351, 357 (4th Cir. 2011); Urnikis-Negro, 616 F.3d at 681; Clements v. Serco, Inc.,
530 F.3d 1224, 1230-1231 (10th Cir. 2008); Valerio v. Putnam Assocs., Inc., 173 F.3d 35, 38-40
(1st Cir. 1999); Blackmon v. Brookshire Grocery Co., 835 F.2d 1135, 1138-1139 (5th Cir. 1988);
Longlois v. Stratasys, Inc., 88 F. Supp. 3d 1058, 1081-1084 (D. Minn. 2015), cited in Payne v.
Freeman Transit, LLC, No. 2024 WL 512632, at 8 n.3 (W.D. Ark Feb. 9, 2024; Smith, 2011 WL
96868, at 34-36; Pressler v. FTS USA, LLC, No. 4:09-CV-676-DPM, 2010 WL 5105135, at *1, 3-
4 (E.D. Ark. Dec. 9, 2010); Ahle v. Veracity Rsch. Co., 738 F. Supp. 2d 896, 918-919 (D. Minn.
2010).
Because the summary-judgment record reflects that Jenkins sought the salaried option as
his method of pay and understood the salaried option would provide a fixed salary for all hours
worked, including hours exceeding 40 per week, partial summary judgment should be granted on
the applicability of the fluctuating workweek method to the calculation of damages.
IV. 	CONCLUSION
For the reasons discussed above, it is RECOMMENDED that RBIS’s Motion for Summary
Judgment (ECF No. 19) be DENIED in PART and GRANTED in PART. Summary Judgment
should be DENIED as to applicability of the executive exemption, the two-year statute of
limitations, and as to Jenkins’s claim for liquidated damages. 	Summary judgment should be
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GRANTED on the issue of applicability of the fluctuating work-week method of calculating
unpaid overtime.
The parties have fourteen (14) days from receipt of the Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 19th day of December 2024.
/s/	
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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