United States District Court, W.D. Virginia, Harrisonburg Division
ELIZABETH K. DILLON ELIZABETH K. DILLON UNITED STATES
case is before the court on plaintiff Tonya Hansberger's
(Hansberger) and defendant L'Italia Restaurant, LLC's
(L'Italia) joint motion for summary adjudication (Dkt.
No. 36). The parties request that the court
determine whether L'Italia's deduction of $100 from
Hansberger's pay on January 23, 2016, when L'Italia
closed due to inclement weather, defeats L'Italia's
affirmative defense that Hansberger was an exempt employee.
The court will resolve the joint motion in L'Italia's
favor because, even construing the undisputed facts in the
light most favorable to Hansberger, the applicable legal
principles show that the one-time improper deduction from
Hansberger's pay does not destroy the possibility of
Hansberger being an exempt employee. This opinion briefly
sets forth the reasons for the court's ruling.
alleges that L'Italia, her former employer, misclassified
her as exempt from overtime pay provisions of the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 201 et seq.
In order to qualify under the executive exemption, Hansberger
must have been paid on a salary basis and her job duties must
have fallen within one of the exemptions. The parties
disagree over both of these issues, but the instant motion
involves only the salary requirement.
are five undisputed facts for purposes of this motion that
are relevant to whether L'Italia's deduction defeats
its affirmative defense: (1) Hansberger was docked a
day's pay when L'Italia closed the restaurant on
January 23, 2016, due to inclement weather; (2) this was
L'Italia's only deduction from Hansberger's pay;
(3) the deduction was improper; (4) L'Italia has no
written policy regarding deductions; and (5) Hansberger was
not reimbursed for the deduction.
Summary Judgment Standard
judgment may be granted if the moving party “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). When considering cross-motions for
summary judgment, the court must “consider each motion
separately on its own merits to determine whether either of
the parties deserves judgment as a matter of law.”
Defs. of Wildlife v. N.C. DOT, 762 F.3d 374, 392
(4th Cir. 2014) (quoting Bacon v. City of Richmond,
Va., 475 F.3d 633, 638 (4th Cir. 2007)). For each
motion, “the court must take care to ‘resolve all
factual disputes and any competing, rational inferences in
the light most favorable' to the party opposing that
motion.” Id. (quoting Wightman v.
Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st
Cir. 1996)). “The party who bears the burden of proof
on an issue at trial, however, cannot survive summary
judgment without forecasting evidence sufficient to sustain
his or her burden of proof on that point.” McIntyre
v. Aetna Life Ins. Co., 581 F.Supp.2d 749, 756 (W.D. Va.
2008) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 327 (1986)).
parties rely on two primary regulations in their analysis of
whether this improper deduction means that Hansberger was not
paid on a salary basis and thus loses the exemption. The
first is 29 C.F.R. § 541.602. Pursuant to this
regulation, an employee is considered to be paid on a
“salary basis” if she regularly receives each pay
period “a predetermined amount” that is
“not subject to reduction because of variations in the
quality or quantity of the work performed.” Subsections
(1) and (2) make clear that an exempt employee must receive
her full salary “without regard to the number of days
or hours worked” and without deductions for
“absences occasioned by the employer or by the
operating requirements of the business.” 29 C.F.R.
Under the second regulation, 29 C.F.R. § 541.603(a),
[a]n employer who makes improper deductions from salary shall
lose the exemption if the facts demonstrate that the employer
did not intend to pay employees on a salary basis. An actual
practice of making improper deductions demonstrates that the
employer did not intend to pay employees on a salary basis.
determining whether an “actual practice” exists,
the court is to consider a number of factors, including the
number of improper deductions and the time period in which
they were made, the number of employees whose salary was
improperly reduced, and whether the employer has a clearly
communicated policy regarding improper deductions. 29 C.F.R.
extent that Hansberger is arguing that any improper deduction
means that the employer cannot meet the “salary
basis” requirement for that employee or class of
employees, that interpretation of § 541.602 renders
§ 541.603 meaningless. So, the court does not read
§ 541.602 as effectively a threshold barrier to even
reaching § 541.603. Instead, the court must determine
whether the facts demonstrate that L'Italia did not
intend to pay employees on a salary basis and, relatedly,
whether it had an “actual practice” of making
improper deductions, ...