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.