In a case involving an uncommon number of legal twists and turns, the State of Vermont has convinced a federal Judge to uphold its sovereign immunity from suit under the FLSA. Coniff v. Vermont, 2013 U.S. Dist. LEXIS 143494 (D. Vt. Sept. 30, 2013).
Generally speaking, states are immune from claims brought by private individuals in federal courts. Thus, the FLSA collective action filed by several hundred public sector workers (who are also members of a union, the Vermont State Employees Association) seemed unlikely to get off the ground. However, the State’s initial defense strategy involved a disavowal of its own sovereign immunity, including a representation in written discovery that it was not relying on the defense, as well as representations from counsel. Years into the litigation, the State reversed course and asserted the sovereign immunity defense, giving rise to an analysis of whether any of its prior actions or inaction served as a basis for waiver of the defense. Judge William K. Sessions III ruled that the State had not expressly waived sovereign immunity through the legislature, and further that, because “sovereign immunity may be raised at any point in the proceeding: on appeal, in summary judgment motions, even by the Court sua sponte,” the State’s purported waiver through its litigation position could not possibly be effective, as it would be inconsistent with the doctrine that such immunity susceptible to invocation on appeal.
Public sector employers see their fair share of wage litigation. They must ensure compliance, including with the at times misunderstood issues relating to the provision of overtime pay in the form of compensatory time, that is principally available to public sector employers only under 29 U.S.C. § 207(o).