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Murphy Oil USA Inc. forced gas station and convenience store workers to work off-the-clock to make up cash register shortages or be fired, a nationwide class lawsuit filed Sept. 28 alleges ( Appleyard v. Murphy Oil USA, Inc. , W.D. Tenn., No. 17-01188, complaint filed 9/28/17 ).
The company didn’t give workers proof of the shortages or an opportunity to dispute them, according to a complaint filed in the U.S. District Court for the Western District of Tennessee. The lawsuit, filed on behalf of hourly, full-time workers who aren’t exempt from federal overtime pay, seeks to certify a collective action under the Fair Labor Standards Act.
An estimated 5,000 workers could be eligible to join the putative class, J. Russ Bryant of Jackson, Shields, Yeiser & Holt in Memphis, Tenn., told Bloomberg BNA Sept. 29. But typically only about 10 percent of potential class members opt into FLSA collective actions, Bryant said.
Murphy Oil currently is embroiled in a showdown before the U.S. Supreme Court over whether class action waivers in mandatory arbitration agreements are enforceable under federal law.
The workers in the current FLSA lawsuit against Murphy Oil did sign arbitration agreements with class action waivers, Bryant said.
However, they’re operating under the assumption that the agreements are unenforceable under the U.S. Court of Appeals for the Sixth Circuit’s ruling in NLRB v. Alternative Entertainment Inc., he said. The Sixth Circuit in May joined two other appeals courts and the National Labor Relations Board in finding that waivers blocking workers from pursuing class or collective lawsuits or arbitrations violate federal labor law. The Fifth and Eighth circuits reached opposite conclusions.
The Western District of Tennessee is within the Sixth Circuit.
Bryant added that the same district court held Sept. 28 in a separate FLSA overtime case against Dollar General that class action waivers are unenforceable but can be severed from arbitration agreements so long as the contracts include a severability clause. The court in the Dollar General case allowed the employees to proceed with class arbitration.
A Murphy Oil representative didn’t immediately respond to Bloomberg BNA’s Sept. 29 request for comment.
Gordon E. Jackson of Jackson, Shields, Yeiser & Holt also represents the workers. An attorney hasn’t yet entered an appearance for Murphy Oil.
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