In any FLSA lawsuit involving unionized workers, the defense lawyer must always look for a preemption defense.  That means that the lawsuit is not properly before a Judge because it involves union contract interpretation, the matter must be arbitrated under the grievance-arbitration procedure.  An employer has just made this claim and, if successful, the entire case goes away.  The case is entitled Mack v. Six Flags Great Adventure LLC and was filed in federal court in the District of New Jersey.

The employer asserts that “the CBA has a grievance and arbitration procedure in place to resolve grievances.  The grievance and arbitration procedure follows a multi-step process, including informal attempts to resolve a dispute, and ultimately culminating in mandatory arbitration.”  The employer’s position is that because the work schedules and hours of employees are referenced in the contract, the dispute belongs in arbitration.

It is a working time case.  The named plaintiff alleges that all employees had to walk up to 20 minutes across the park, at which time they were compelled to undergo screening before/after their shifts.  They want payment for the time.  This is the second try for the plaintiff in the case.  He had sued in federal court.  Then, the Company defended by asserting that the court lacked jurisdiction under the Class Action Fairness Act and the Judge dismissed the case, without prejudice. Now, the plaintiffs are back for a second try.

The Takeaway.

This is the exact right way to go.  If the Company can demonstrate that the matter requires interpretation of contract terms, then it should be victorious.  If, on the other hand, the matter is deemed to involve a clear violation (e.g., paying less than State minimum wage) of a State law, the motion to dismiss on preemption grounds will fail.  It is still worth the effort.

After all, it could be a magic bullet…

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