United States District Court, W.D. Missouri, Western Division
FRED SPEER and MIKE MCGUIRK, individually and on behalf of a class of all others similarly situated, Plaintiffs,
CERNER CORPORATION, Defendant.
Fernando J. Gaitan, Jr. United States District Judge.
before the Court are (1) Cerner Corporation's Motion for
Partial Summary Judgment on Plaintiffs' Federal and State
Late-Overtime Claims (Doc. No. 189); and (2) Plaintiffs'
Motion to File Surreply to Address New Arguments in
Cerner's Reply in Support of Motion for Partial Summary
Judgment on Federal and State Late-Overtime Claims (Doc. No.
223). As an initial point, the Court will DENY
plaintiffs' motion for leave to file a surreply (Doc. No.
223), as the Court finds that plaintiffs adequately
controverted the relevant facts and arguments in their
original suggestions in opposition. Furthermore,
defendant's request for oral argument in its reply to
Doc. No. 189 is DENIED.
Frederic Speer and Michael McGuirk, individually and on
behalf of themselves and others similarly situated, bring a
two-count complaint against Defendant, Cerner Corporation
(“Cerner”), alleging that Defendant violated the
Fair Labor Standards Act (“FLSA” or
“Act”) and the Missouri Minimum Wage Law
(“MMWL”). Cerner employed both Plaintiffs Speer
and McGuirk as Service Center Analysists/System Support
Analysts (“Desktop Support Staff”) at its
operation, Tiger Institute for Health Innovation in Columbia,
Missouri. In their Complaint, Plaintiffs allege that Cerner
improperly calculated their overtime compensation by using a
fluctuating workweek (“FWW”) method, which
contemplates dividing employees' fixed earnings by the
number of hours they worked in a given week to arrive at a
regular rate and then adding one-half time (50%) of the
regular rate as overtime for all hours over forty. Plaintiffs
also complain that Cerner failed to include all remuneration
when calculating the regular rate of pay for its employees,
and such failure resulted in overtime compensation of less
than even the reduced FWW one-half (50%) overtime
compensation rate. Furthermore, according to Plaintiffs, even
this inadequate overtime compensation was systematically paid
late. Plaintiffs claim that as a result of these violations
Cerner denied them, as FLSA non-exempt employees, proper and
timely overtime pay in violation of FLSA. Doc. No. 39, ¶
March 30, 2016, the Court granted plaintiffs' motion for
conditional certification of a collective action in part.
See Doc. No. 165. On September 27, 2016, the Court
granted plaintiffs' motion to certify a Rule 23 class.
See Doc. No. 215. Among the classes certified was
“All non-exempt persons employed by Cerner in Missouri,
at any time since March 5, 2012 through the final judgment in
this matter, whose overtime compensation was not paid on the
next regular payday for the period in which the overtime work
was performed (“Late Payment of Overtime Class”).
Doc. No. 215, p. 23. Defendant Cerner moves for summary
judgment as to both the state and federal late-overtime
claims because: (1) according to Cerner, the FLSA does not
prohibit the reasonable and consistent pay schedule under
which Cerner paid a portion of its non-exempt employees their
overtime; (2) under the FLSA, Cerner paid all overtime
“as soon as practicable” after it issued regular
pay; (3) and, according to Cerner, under Missouri law, no
statute permits a private right of action for the conduct
alleged in this case.
Statement of Facts
allege that Cerner made bi-weekly salary payments to them for
two weeks of work in the week following those weeks. This
means Plaintiffs received their salary payments for weeks 1
and 2 in week 3, their salary payments for weeks 3 and 4 in
week 5, and so forth. During plaintiffs' employment,
however, Cerner calculated and paid overtime to Salaried
Non-Exempt (“SNE”) employees in the subsequent
payroll, such that overtime earned during weeks 1 and 2 would
be paid in the week 5 payroll. Plaintiffs note, however, that
in the summer of 2014 (after the filing of this lawsuit),
Cerner changed its payroll processes, such that SNE employees
were paid their overtime in the same pay period in which it
was earned. Plaintiffs complain that prior to the summer of
2014, Cerner made untimely overtime payments violating the
FLSA and the Missouri Minimum Wage Law (“MMWL”).
Cerner's own HR documents from the relevant time period
notify United States associates that “Overtime is
always one pay period behind.” (Exh. 2, filed under
seal; Exh. 3, at SPEERD00001233, filed under seal).
February 2015, Cerner employed SNE employees in greater than
120 different business units and in eighteen states across
the country. During the period 2012 to January 2016, Cerner
had anywhere between 500 and 800 SNE employees at a given
time. During the period 2012 to January 2016, Cerner had
anywhere between 400 and 1, 600 hourly employees at a given
time. Cerner asserts it pays its SNE employees pursuant to
the fluctuating workweek (“FWW”) method of pay,
and according to the FWW method of pay, SNE employees are
required to be paid an additional 50% premium for each
overtime hour worked beyond forty hours per week. The parties
dispute whether Cerner complied with the FWW method of pay.
maintains a deadline of 11:59 p.m. on Saturday evening for
the weekly submission of timesheets by its employees. The pay
period ends at midnight. However, plaintiffs testified that
their managers told them during their employment that the
deadline was flexible, and it was acceptable to submit time
sheets by the following Monday or Tuesday. Further, prior to
this lawsuit being filed, Cerner did not begin calculating
SNE employees' overtime each pay period until Thursday
following the close of the two-week pay period, five days
after the pay period ended.
operates on a bi-weekly payroll schedule and has established
its payday as the Friday following the close of each two-week
pay period. To be included in the upcoming Friday paycheck,
all time must have been entered, pay amounts must have been
calculated and reconciled, and payroll information must have
been submitted to the bank with payroll instructions by close
of business Tuesday-two business days after the close of the
pay period. As SNE employees, Plaintiffs received their full
weekly salaries in their regular paycheck, regardless of the
number of hours they worked and regardless of whether they
submitted their timesheets by the midnight-Saturday deadline.
Plaintiffs and all SNE employees received their full
salaries, even if they missed the time submission deadline,
because their weekly salary was always the same for each work
week, regardless of the number of hours worked. As a result,
information could be quickly processed, reconciled, and
submitted to the bank for payment of Plaintiffs' full
base salary by the Tuesday after the close of the pay period.
However, if Plaintiffs or any other SNE employee recorded
overtime hours on their timesheets, Cerner was required to
determine Plaintiffs' “regular rate” of pay
for each week in order to calculate, process, and issue
payment of the proper amount of overtime compensation. Under
the FWW method of calculating overtime, the regular rate
varies based upon the types of additional compensation
received and the number of overtime hours recorded
and submitted by Plaintiffs on their timesheets.
asserts it was not possible to calculate Plaintiffs' (and
other SNE employees') overtime compensation by the
bank's Tuesday deadline based on Cerner's staff and
the tools available to it during the relevant time period.
Plaintiffs, however, dispute this fact, given that the
calculation is simple math, and Cerner has admitted it only
takes approximately 16-23 hours to calculate and process SNE
Employee's payroll each pay period. (Richardson Depo.,
Exh. 1, at 176:1-22; 179:17-180:20). Plaintiffs further note
that Cerner, a company with billions in annual revenue and
more than 16, 500 U.S.-based employees, chose to staff its
payroll department with just four people. (Richardson Depo.,
Exh. 1, at 151:9-18). Furthermore, after Plaintiffs filed
this lawsuit in March 2014, Cerner created a computer program
called Time Tool, which it implemented in the summer 2014,
and began paying SNE employees' overtime wages on the
next pay day following the close of the pay period in which
it was earned, which plaintiffs argue demonstrates that
timely payment was reasonably possible. (Richardson Depo.,
Exh. 1, at 150:9-151:7).
of calculating the SNE employees' overtime compensation
by the bank's Tuesday deadline, Cerner made calculations
for all hourly employees' overtime, and submitted both
hourly employees' overtime and regular pay information,
as well as SNE employees' base pay information to the
bank for payment. Following that process, Cerner calculated
and submitted SNE employees' overtime information for
payment the Friday after the close of the next two-week pay
period. Defendant Cerner asserts that staggering only the SNE
overtime payroll limited the impact within the Cerner
employee population (Ex. C, Richardson Depo. at
160:8-161:11); plaintiff, however, argues that by claiming it
was attempting to limit the impact, Cerner shows it was aware
that its late overtime payment practice legally impacted its
Cerner also claims that the SNE employees, including named
plaintiffs, frequently submitted their timesheets late.
However, plaintiffs respond that with their overtime being a
pay period behind, SNE employees had no incentive to submit
their timesheets by the purported Saturday deadline.