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Payment of wages to DOL didn’t moot FLSA claims

Where defendants sued for allegedly not paying overtime argued the plaintiffs’ Fair Labor Standards Act claims were mooted by the defendants’ tendering of the disputed funds to the Department of Labor, this argument was rejected. Waiver requires an agreement to waive rights, which must exist in addition to payment received.


This case arises from a Fair Labor Standards Act, or FLSA, claim, in which plaintiffs, who are allegedly employees of defendants, claim defendants did not compensate them for their overtime work.

Defendants argue that plaintiffs’ second amended complaint should be dismissed because their FLSA claims are moot. Second, defendants assert that the Department of Labor, or DOL, has exclusive jurisdiction over plaintiffs’ claims. Plaintiffs have filed a motion to strike defendants’ supplemental brief.


Defendants contend that because they paid the DOL the money plaintiffs are owed, plaintiffs waived their right to bring forth their FLSA claims, and thus their FLSA claims should be dismissed at moot.

Plaintiffs’ arguments and authorities in response to KBR defendants’ supplemental brief are compelling. Plaintiffs point to numerous federal circuit courts which have held that waiver under § 216(c) requires an agreement to waive rights, which must exist in addition to payment received. KBR defendants’ attempt to bolster their position with caselaw fails. Indeed, the cases to which they cite further emphasize the conclusion that affirmative waiver is necessary in instances such as this.

Therefore, even if the defendants did pay the DOL what is owed to plaintiffs, plaintiffs are still entitled to seek judgment against the defendants. Similarly, even if plaintiffs only seek attorney’s fees, the claim is still not mooted because an “FLSA plaintiff is entitled to an award of some reasonable attomey[s’] fees and costs.” Thus, the court concludes that plaintiffs’ FLSA claims are not moot.


Defendants maintain that because the DOL has already exerted its exclusive jurisdiction, that even if plaintiffs’ claims are not moot, this court should still grant defendants’ motions to dismiss. Plaintiffs maintain that the DOL does not have exclusive jurisdiction here, where plaintiffs have not made any claims under the Service Contract Act, or SCA.

Plaintiffs may bring their claims under the FLSA because they provided labor in interstate commerce and because defendants are enterprises engaged in interstate commerce whose annual gross volume of sales is over $500,000. The SCA does not prohibit plaintiffs, like the ones in this case, from bringing a civil action under the FLSA.

For these reasons, the court concludes that plaintiffs may pursue their private right of action for unpaid overtime claims under the FLSA even if they have performed work that was subject to the SCA. Accordingly, the court will deny defendants’ motions to dismiss.

Motion to strike

During the March 20, 2023, hearing, the court directed KBR defendants to brief the issue of “waiver.” Without leave of court, the ITS defendants filed a supplemental brief and 32 pages of new evidence and a declaration which do not address the discrete issue of “waiver.” While the court has the discretion to consider ITS defendants’ supplemental brief and accompanying documents, such materials only hinder defendants’ position.

Indeed, ITS defendants re-argue previously made points – none of which demonstrate that plaintiffs affirmatively agreed to waive their rights to bring forth their FLSA claims. Because the ITS defendants were not directed to file their supplemental brief and did not seek leave of court before filing such brief, the court will grant plaintiffs’ motion to strike ITS defendants’ supplemental brief. The court notes, however, that even had ITS defendants properly sought permission to file the brief and accompanying documents, such materials would not in any way impact the court’s conclusion as to defendants’ motions to dismiss.

Defendants’ motions to dismiss denied. Plaintiffs’ motion to strike granted.

Hernandez v. KBR Inc., Case No. 3:22-cv-530, May 10, 2023. EDVA at Richmond (Hudson). VLW 023-3-255. 22 pp.

VLW 023-3-255

Virginia Lawyers Weekly