Courthouse 7On Monday, May 15, 2017, the U.S. Supreme Court denied the City of San Gabriel’s petition for review of Flores v. City of San Gabriel, a 2016 decision by the U.S. Court of Appeals for the Ninth Circuit that offered new interpretations of the Fair Labor Standards Act (FLSA). Therefore, Flores remains the governing law in the eight states within the Ninth Circuit Court of Appeals, including California.  The primary holding of Flores is that amounts paid to employees in lieu of health benefits must be included in employees’ regular rate for purposes of calculating FLSA overtime. The holdings of the case will remain the law of this Circuit unless and until (1) Congress acts to amend the FLSA to provide relief to employers, or (2) another Circuit Court rules differently than the Ninth Circuit on the same issue or issues and the Supreme Court grants review of that case and rejects Flores.

How Did We Get Here?

In 2012, Danny Flores and other police officers working for the City of San Gabriel filed a lawsuit seeking to recover back overtime pay under the FLSA. After a decision by the trial court, both parties appealed the decision to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit issued its decision on June 2, 2016. The holdings of the decision are discussed below. On June 16, 2016, the City sought a rehearing by the Ninth Circuit (“en banc review”). The request was denied by the Ninth Circuit on August 23, 2016. In January 2017, the City filed a petition for writ of certiorari with the U.S. Supreme Court, asking the Supreme Court to review and overturn the Flores case. Two amicus curiae briefs were filed in support of the City’s petition, including a brief from seven different public sector organizations that demonstrated the wide impact of the Ninth Circuit’s decision. On May 15, 2017, the Supreme Court denied the City’s petition, thus terminating the possibility of further judicial review of the Flores decision. The Flores decision remains the law of the Ninth Circuit and is binding upon California employers.

A Review of the Three Main Holdings of the Flores Case

Cash in Lieu

The clearest mandate arising from the Flores case is that cash payments to employees for waiving health insurance or not using their entire health allowance (“cash-in-lieu”) must be included in the employees’ FLSA “regular rate of pay,” which is the hourly rate used to compensate non-exempt employees for FLSA overtime hours. The FLSA regular rate requirements apply to FLSA overtime hours, but not other types of contractual overtime. Many labor agreements provide overtime more generously than required by the FLSA – such as treating paid leave time as hours worked, or paying overtime for working on holidays. The FLSA regular rate requirements do not apply to those “non-FLSA” contractual overtime hours.

For employers who pay employees significantly in excess of minimum FLSA overtime requirements, an inclusion of cash-in-lieu in the FLSA regular rate of pay may not result in additional FLSA overtime liability because of the various offsets against FLSA overtime liability that are available to those employers. This is particularly true for public safety employees for whom the employer has adopted a section 207(k) work period. For employers with high cash-in-lieu amounts or contractual overtime practices that more strictly follow the FLSA, implementing this aspect of the decision will likely result in higher overtime costs. Before making changes to a regular rate calculation because of Flores or other similar issues, employers should carefully evaluate whether inclusion of cash-in-lieu in the FLSA regular rate of pay will require them to pay more than their current contractual overtime obligations.

Bona Fide Plans

Per Flores, if the aggregated amount of cash-in-lieu an agency pays to employees is more than 40% of total plan payments (total plan payments means cash-in-lieu and other plan contributions), the employer’s plan is not bona fide under the FLSA. This means the value of all plan payments must be included in the FLSA regular rate of pay. There is no bright line rule as to a percentage that will ensure an employer’s plan is bona fide. Indeed, the Ninth Circuit in Flores threw out the formerly-applicable 20% test but offered no guidance as to what the test should be. Accordingly, employers that offer cash-in-lieu should work with legal counsel to evaluate whether their plans are bona fide under the Ninth Circuit standard. If an employer’s benefits plan is not bona fide, overtime costs will undoubtedly rise since the FLSA regular rate for non-exempt employees will increase.


Now that Flores is final, the current Ninth Circuit standard on willfulness is the following: in the words of the Court, an employer’s violation of the FLSA is willful when the employer is “on notice of its FLSA requirements, yet [takes] no affirmative action to assure compliance with them.”  A willful violation subjects an employer to liability for three years of back pay (instead of two). This “willfulness” standard places a burden on employers who have any awareness of their FLSA obligations to be proactive in their FLSA compliance efforts. We recommend employers work with legal counsel to ensure sufficient active steps to achieve FLSA compliance are taken and – importantly – documented on a regular basis.

Final Thoughts

The Flores decision illustrates the challenge of FLSA compliance for employers. The FLSA was enacted 79 years ago and the statute and the Department of Labor regulations and interpretations have not kept pace with the realities of the twenty-first-century workplace, such as payments to employees for opting out of health insurance. This is especially true in the public sector, where employers have a myriad of different types of employees and pay requirements. In light of those challenges, the decision reiterates the importance of conducting and documenting a careful review of FLSA overtime payment practices, to not only ensure compliance, but also to prevent a willful violation and be able to prove a good faith defense.

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Photo of Lisa S. Charbonneau Lisa S. Charbonneau

Lisa represents public agencies throughout the state as a negotiator, litigator, and trusted advisor in all matters pertaining to labor and employment law.  She has extensive experience in Fair Labor Standards Act (FLSA) and wage and hour compliance, labor relations, collective bargaining, MOU…

Lisa represents public agencies throughout the state as a negotiator, litigator, and trusted advisor in all matters pertaining to labor and employment law.  She has extensive experience in Fair Labor Standards Act (FLSA) and wage and hour compliance, labor relations, collective bargaining, MOU audits, PERB practice, and public employee disciplinary matters.  She also represents independent schools and non-profits in wage and hour matters.

Lisa has served as lead negotiator for small and large public agencies in labor negotiations with public safety unions and numerous other employee associations and organizations, including Teamsters, SEIU, AFSCME, police/deputy sheriffs associations, and the International Association of Firefighters.  Lisa takes a hands-on approach to bargaining and strives to be highly responsive to the unique needs of each client and their governing body.

Lisa also has an extensive litigation background in federal and state court, and has achieved successful results for clients in matters ranging from wage and hour to First Amendment retaliation.  As one of the firm’s FLSA litigators, Lisa has represented numerous cities, counties, and special districts in FLSA collective actions throughout the state.  She has also represented clients in arbitrations and fact-finding hearings, as well as before the Public Employee Relations Board, the California Labor Commissioner, the U.S. Department of Labor, the California Department of Fair Employment and Housing, and the Equal Employment Opportunity Commission.

A significant part of Lisa’s practice involves counseling clients on the meet and confer process and FLSA issues.  She also conducts FLSA audits for clients, which range in scope from reviewing employer compliance with discrete wage and hour laws to assisting with payroll system upgrades and modifications to achieve compliance with wage and hour laws.  Her practice also includes training on such subjects as ethics, discrimination and harassment, FLSA compliance, the collective bargaining process, and the Brown Act.

Lisa serves on the Executive Committee of the firm’s Wage and Hour Practice Group and has taught LCW’s FLSA Academy since its inception.

Lisa received her JD from U.C. Hastings College of the Law in 2006 and was admitted to the California State Bar in December of that year.  While at Hastings, Lisa served as an Equal Justice America fellow and received a grant to work on community economic development issues for the City of Detroit.  Lisa earned her Bachelor of Arts with Honors in Government from Wesleyan University in Middletown, Connecticut, and soon after that worked at a bi-weekly political magazine in Washington, D.C. until she began to pursue her law degree.