Federal judge says state can use sovereign immunity defense in state workers’ overtime suit

The state reassessed its approach this week in a lawsuit that could end in millions of dollars of back pay for state workers who say they weren’t paid overtime when they should have been.

The 2010 lawsuit puts the state on the defensive against hundreds of workers who weren’t paid overtime even though they say they should have been. Until this week, the core argument from both sides was whether or not the workers were considered salaried or hourly employees.
Under the Fair Labor Standards Act, salaried employees are exempt from overtime requirements, whereas hourly wage workers must be paid overtime.

This week, though, a federal district court judge ruled that the state could use a different defense, which would supersede the merits of the case: sovereign immunity.

In general, private citizens may not sue state governments except on grounds under which the state has waived its right to sovereign immunity. The State of Vermont, in this case, initially said it would not claim sovereign immunity, and would try to win the case based on its merits.

They have since gone back on that claim, stating that they plan to claim immunity in the case.

“I think they’re grasping at straws for a defense,” said Tom Somers, a private attorney representing the workers.

Somers said the state “changed its position 180 degrees,” and the workers relied, in their case, on the assumption that the state would not defend itself with claims of sovereign immunity.

William Sessions, the judge ruling on the case in the U.S. District Court for the District of Vermont, asked Assistant Attorney General Jonathan Rose: “Are you sure you want to go down this road?” during a hearing in which he ultimately ruled that the state could use the argument in court.

“My response when the judge said that is that it’s our duty to protect the state’s sovereignty,” Rose said in an interview.

The case now turns from the question of salary versus hourly pay to whether or not the state has waived its sovereign immunity, thereby consenting to lawsuits around labor issues.

“I think the argument is entirely meritless,” Somers said of the state’s attempt to use sovereign immunity. Whether the judge agrees remains to be seen. This week’s ruling only permits the state to bring immunity forward as a defense in court – it does not guarantee it will stand.

Somers said the state likely switched up its defense because they realized they didn’t have a good argument on other merits of the case. If the judge rules the state is immune, the merits of the case will never be heard.

Rose said the state is asserting its sovereignty, not trying to escape the lawsuit on a technicality.

“It is a very important matter of state policy. It’s kind of easy to think that it’s just kind of a technical defense that keeps the plaintiffs from having their day in court, but it really is a substantive defense,” he said.

Somers and Rose agree that the federal government may not waive a state’s right to sovereign immunity on labor issues, as it can on other issues such as civil rights, but they disagree on whether the state itself has waived the immunity.

Somers points to language in state law that says state workers are covered by the federal Fair Labor Standards Act (FLSA), but Rose says that just because the federal law applies at the state level does not mean the state has waived its immunity to lawsuits filed under the FLSA.

“The language [Somers is] talking about simply acknowledges that public employees are covered by the Fair Labor Standards Act. It says nothing about lawsuits against the state,” Rose said.

Taylor Dobbs


  1. Josh Fitzhugh :

    If sovereign immunity is “a very important matter of state policy,” why did the State initially waive the defense? Goof up or a change because the judge raised the question?

  2. Christine LaBarre :

    If the judge sides with the State of Vermont and grants immunity this act will clearly be yet another example of discrimination against one group of people. State employees do not enjoy the same rights as employees in the private sector. Employees in the private sector have the right to sue their employer for violation of labor laws. If employees in the private sector were not paid for overtime they have the right to sue. If a private employer abuses the Family leave act by firing an employee for taking extended leave, they can sue their employer for breaking the law. A state employee cannot sue their State government employer when that employer denies employee sick leave, as in the case Coleman vs. Maryland. Nor will state employees be able to have their case heard in court if the judge grants immunity. Do I really live in the United States, where life, liberty, and the pursuit of happiness does not mean there will be the inalienable rights for all citizens? A country which is supposed to guarantee due process and equal protection of laws for everyone. Clearly state employees in this country are constantly treated and viewed as second class citizens with no rights to go up against its employer which also happens to be a state government. Surely a clause should be enacted to make the state exempt from immunity when Vermont and other states discriminates against it’s employees.

  3. Without jumping into other parts of this discussion: the concept of sovereign immunity is certainly much, much larger than a technicality.

  4. Luci Stephens :

    I believe that when the State entered into a contract with the Vt. St. Emp. Assoc, said contract covering ALL State employees, the State by so doing knowingly waived its right to claim sovereign immunity relative to any matters negotiated in the contract. This will be interesting on a purely legal plane. For State employees, it should be frightening.

  5. Jacqueline Rousseau :

    Hmmm, makes me think that the State realized there was a good case against them.

  6. Luci Stephens :

    p.s. to my 7/7 8:32 comment… If the State is successful in persuading the federal Court to allow ‘sovereign immunity’ as a defense against one contractually-relevant suit, which this case is, future contractually-relevant suits could face the same jeopardy. The State enters into many hundreds of contracts ranging from huge to relatively small and with multitudes of organizations and individuals. State employees are perhaps only the ‘tip of the iceberg’ relative to who is impacted if the State can develop a path to avoid contractually-relevant suits through claims of sovereign immunity at the federal Court level.

  7. David Bresett :

    If Shumlin and Spaulding had signed the unions relocation letter none of this would have been. It is part of the contract of VSEA Article 20 3c. Simply put if they would have done their job this wouldn’t be happening.

  8. Doug Gibson :

    David B.: This is a different lawsuit.

    The attorney handling case for employees (Tom Somers), is scheduled to appear Wed. on Mark Johnson’s show, so guessing he can speak to the State’s about-face.

    There’s a labor chant that goes: “Something’s up and it’s not funny, we do the work and they get the money.” Seems applicable to this fight.

  9. Doug Hoffer :

    “The language [Somers is] talking about simply acknowledges that public employees are covered by the Fair Labor Standards Act. It says nothing about lawsuits against the state,” Rose said.

    How can public employees be covered by the statute but not have recourse to the courts to enforce it? The former is useless without the latter.

  10. I am in the same boat. My employer forced me to work for two and one half years, because I assisted in an investigation. When I complained I was told to sue them, I did and for eighteen months it was in federal court, now two weeks before trial they assert 11th amendment.They know I have a solid case against them and we even particpated in a settlement conference yet at the eleventh hour they assert this claim and the judge dismissed the case

  11. rosemarie jackowski :

    Very interesting. “…Sovereign Immunity should never be used to deprive citizens of Justice…” a quote from my 2012 campaign statement.

    Sometimes voting matters.



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