December 7, 2016

Tenth Circuit: Employer’s Payment of Food Expenses Exempt from FLSA Overtime Compensation Rate

The Tenth Circuit Court of Appeals issued its opinion in Sharp v. CGG Land (USA), Inc. on Friday, November 4, 2016.

CGG is a company that provides seismic mapping services at remote locations throughout the United States. CGG employees are required to travel away from home for several weeks to the remote locations. Generally, employees travel for four-to-eight week intervals, then return home for two-to-four week intervals before returning to the field. While traveling, CGG provides a $35 per diem for meals, except when food is provided. A group of employees filed suit against CGG, arguing CGG violated the Fair Labor Standards Act (FLSA) by not including in their regular reimbursement rates the $35 per diem for food during travel periods.

After stipulating to material facts in district court, including that $35 was a reasonable amount for daily meals, each party moved for summary judgment. The district court granted summary judgment to CGG. The district court agreed with CGG that the per diem payments were exempt travel expenses under 29 U.S.C. § 207(e)(2). The employees appealed.

On appeal, the employees argued the payments were not exempt for days when they traveled to and from remote job sites, because they did not do any work on those days. Employees further claimed the payments were not exempt for days they spent at the job sites because they were no longer traveling over the road. Employees also claimed CGG waived all defenses except its claim that the payments were exempt under § 207(e)(2). The Tenth Circuit rejected each contention in turn.

The Tenth Circuit noted that the Department of Labor rejected the argument that food costs may not be included as “living expenses.” The Tenth Circuit agreed with the DOL that the cost of food is an expense the employee incurs for the employer’s benefit and therefore is an exempt living expense. Employees argued they were not “traveling over the road” once they reached the job site, but the Tenth Circuit characterized this as a hyper-literal construction of the word “traveling.” The Tenth Circuit read “traveling” as all time away from home, not just time in transit. Employees also suggested CGG paid the $35 as part of a scheme to set an artificially low hourly pay rate to underpay overtime pay. The Tenth Circuit found the parties’ stipulation that the $35 per diem was reasonable defeated this argument.

The Tenth Circuit affirmed the district court’s grant of summary judgment to CGG.

Tenth Circuit: Unpublished Opinions, 11/4/2016

On Friday, November 4, 2016, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Schneider

United States v. Carey

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 11/3/2016

On Thursday, November 3, 2016, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Washington

Wilson v. Wichita State University

United States v. Munoz

Carbajal v. Swan

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 11/2/2016

On Wednesday, November 2, 2016, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

United States v. Osborn

Umoren v. Byrd

Cox v. Cache County

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Communications Decency Act Does Not Provide Immunity from Suit

The Tenth Circuit Court of Appeals issued its opinion in General Steel Domestic Sales, L.L.C. v. Chumley on Tuesday, November 1, 2016.

General Steel employed Ethan Chumley until 2005, when he left to start his own company, Armstrong Steel. The two parties have had numerous legal disputes since then. Armstrong Steel initiated a negative online advertising campaign against General Steel, so that when internet users search for General Steel, negative advertisements from Armstrong Steel appear that redirect the internet user to Armstrong Steel’s web page entitled “Industry Related Legal Matters.” The web page contains 37 posts, 20 of which are at issue in this action. The 20 posts summarize, quote, and reference lawsuits involving General Steel, and contain selective snippets of court documents.

General Steel filed suit in district court with four claims: (1) unfair competition and unfair trade practices under the Lanham Act, (2) libel and libel per se, (3) intentional interference with prospective business advantage, and (4) civil conspiracy. Armstrong Steel sought summary judgment, claiming immunity from suit and liability under Section 230 of the Communications Decency Act (CDA). The district court found that Armstrong Steel was entitled to immunity for three posts because they simply linked to third-party content. However, the court refused to extend CDA immunity to the other 17 posts and the internet search ads, finding that the defendants were not entitled to immunity because they created and developed the content by selectively quoting and summarizing the court documents in a deceiving way. Armstrong Steel appealed the district court’s denial of immunity and claims appellate jurisdiction under the collateral order doctrine.

The Tenth Circuit analyzed whether the CDA provided immunity from suit or simply immunity from liability. The Tenth Circuit noted that if the CDA provided immunity from suit, the appeal would be effectively unreviewable, but if it provided immunity from liability, the Tenth Circuit would lack jurisdiction because the order of the district court was not a final order. The CDA does not contain “an explicit statutory or constitutional guarantee that trial will not occur,” so it does not provide immunity from suit.

The Tenth Circuit dismissed the appeal.

Tenth Circuit Announces Inflationary Fee Increases

The Tenth Circuit Court of Appeals announced that, effective December 1, 2016, certain fees will be increased to account for inflation. The fee increases will affect the fee for conducting a search of the court of appeals and bankruptcy appellate panel records, which will increase from $30 to $31; the fee for reproducing recordings of proceedings, which will increase from $30 to $31; the fee for reproducing the record in any appeal in which the court of appeals does not require an appendix, which will increase from $83 to $86; the fee for original admission of attorney to practice, including a certificate of admission, which will increase from $176 to $181 (the current total admission fee for the Tenth Circuit Bar will remain the same at $225); and the fee for a duplicate certificate of admission or certificate of good standing, which will increase from $18 to $19.

Tenth Circuit: Unpublished Opinions, 11/1/2016

On Tuesday, November 1, 2016, the Tenth Circuit Court of Appeals issued three published opinions and four unpublished opinions.

United States v. Garcia-Rivas

United States v. McNeal

United States v. Akers

Paulsen v. Colvin

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Rehearing En Banc Denied in Planned Parenthood v. Herbert

On Friday, October 28, 2016, the Tenth Circuit Court of Appeals issued its opinion in Planned Parenthood Association of Utah v. Herbert. The original opinion issued on July 12, 2016, and subsequent to that opinion’s issuance, a poll was called sua sponte to consider en banc rehearing. A majority of active judges voted to deny rehearing.

Judge Briscoe and Judge Bacharach wrote separate concurrences of the decision to deny rehearing. Judge Gorsuch wrote a separate dissent, in which he was joined by Chief Judge Tymkovich, Judge Hartz, and Judge Holmes.

Tenth Circuit: Unpublished Opinions, 10/31/2016

On Monday, October 31, 2016, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Moore v. Lind

Jimenez v. State of Utah

United States v. Young

United States v. Stine

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 10/28/2016

On Friday, October 28, 2016, the Tenth Circuit Court of Appeals issued two published opinions and one unpublished opinion.

United States v. Zander

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 10/27/2016

On Thursday, October 27, 2016, the Tenth Circuit Court of Appeals issued one published opinion and no unpublished opinion.

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 10/26/2016

On Wednesday, October 26, 2016, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

United States v. Pena-Marquez

Rusk v. State of Utah

Moore v. McCollum

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.