The Fresh Market Department Managers Case Awaits Ruling on Class Certification

HARTFORD / WATERBURY, Conn. - Feb. 20, 2014 - PRLog -- Department managers and department heads at Fresh Market are awaiting a ruling on a motion from a federal judge in Connecticut that will determine whether their cases can be joined in one collective action lawsuit. According to the lawsuit, the employees are seeking wages for hours that they worked, but for which they were not paid, as a result of Fresh Market's "half-time overtime" scheme.

Richard Hayber, the Connecticut employment lawyer representing the department managers, said the employees are similarly situated and have a strong case for the motion, called a motion for conditional certification.

"Department managers for The Fresh Market are paid according to the same fluctuating work week policy, also called 'halftime overtime' or 'Chinese overtime,'" Hayber said. "The fact that they are paid under the same scheme should allow them to be certified as a class and move forward together to receive the compensation they deserve."

The lawsuit (Ouellette v. The Fresh Market, Inc., Civil Action No. 3:13-CV-01027, U.S. Dist. Ct. Conn.)), alleges that The Fresh Market pays its department managers for hours beyond 40 per work week at half the rate they would be paid had they been paid hourly, a practice called the "fluctuating work week (FWW).”

According to the lawsuit, Fresh Market violates the law by paying its department managers and department heads bonuses that are distributed quarterly or yearly because this results in their salary not being fixed as required by the fluctuating work week laws. The plaintiffs allege that this is a violation of a 2011 directive from the U.S. Department of Labor (76 FR 18832).

"The Fresh Market's payment plan, which defers a portion of department managers' income to the end of the quarter or the year, violates the DOL directive," Hayber said. "The fluctuating work week regulations prohibit The Fresh Market's scheme."

The lawsuit also alleges that the company fails to property ensure that employees understand the FWW, a further violation of U.S. Department of Labor regulations.

The motion for conditional certification motion cites the affidavits of 20 department managers or department heads in 11 states, which state that they were paid in this manner. If the collective class is certified, all department managers will receive notice of their right to join the lawsuit.

While the judge is considering the motion, current or former Fresh Market department managers may contact the Hayber Law Firm for more information through the case website by clicking here (http://www.hayberlawfirm.com/employee-rights/pending-clas...). Federal law prohibits The Fresh Market from discriminating in any way against employees in retaliation for joining the lawsuit.

Richard Hayber, of the Hayber Law Firm, is a Connecticut hour and wage attorney (http://www.hayberlawfirm.com/employee-rights/wage-and-hour/) who represents employees who have been wrongfully deprived of overtime pay in state and federal courts in Connecticut.

Plaintiffs in The Fresh Market case are also represented by C. Andrew Head of Fried & Bonder LLC (http://friedbonder.com/).