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Updated Eighth Circuit Civil FLSA Instructions

Eighth Circuit jury instructions are linked on the official Eighth Circuit Jury Instruction site in pdf and docx formats. The official civil instructions are labeled as "[r]eflecting changes made through October 22, 2020." But recently, without updating the title page, they made some significant changes to their FLSA Instructions:

  • There are a number of unconsequential edits to the Comment to Instruction 16.00 (EMPLOYMENT-FAIR LABOR STANDARDS ACT-OVERVIEW). More substantively, it now cites Kisor v. Wilkie, 139 S.Ct. 2400 (2019). It also adds "In some instances, an individual may be deemed to be employed by more than one employer in a 'joint employment' relationship. See 29 C.F.R. § 791.2 (2020) (describing two joint employer scenarios)." under "Employee and Enterprise Coverage." Finally, it includes the following under "Misclassification Cases":
    Exemptions are At one time courts consistently held that exemptions were to be narrowly construed against the employer and the employer carries the burden of proving an exemption applies. See, e.g., McDonnell v. City of Omaha, 999 F.2d 293, 295 (8th Cir. 1993) (Employers have the burden of proving that the exemption applies, and they must demonstrate that their employees fit “plainly and unmistakably within the exemption’s terms and spirit.”). This “narrow construction” was rejected by the Supreme Court in Encino Motorcars, LLC v. Navarro, 138 S.Ct. 1134 (2018). There, the Court observed that the FLSA’s numerous exemptions “are as much a part of the FLSA’s purpose as the overtime-pay requirement. . . . Because the FLSA gives no ‘textual indication’ that its exemptions should be construed narrowly, there is no reason to give them anything other than a fair (rather than ‘narrow’) interpretation.” Id. at 1142.
    Exemptions involve issues of law and fact. “Disputes regarding the nature of an employee's duties are questions of fact, but the ultimate question whether an employee is exempt under the FLSA is an issue of law.” Jarrett v. ERC Properties, Inc., 211 F.3d 1078, 1081 (8th Cir. 2000) (citing Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986) (“The question of how the respondents spent their time working...is a question of fact. The question whether their particular activities excluded them from the overtime benefits of the FLSA is a question of law . . . .”)). Accordingly, Instruction No. 16.07 is prepared to enable the court to submit any material, disputed factual issues to the jury, with the court then making the legal determination by considering any facts that are undisputed along with the special findings from the jury with respect to any disputed material facts.
  • The minimum wage in Instruction 16.02 is updated to reflect the current wage.
  • The Notes on Use for Instruction 16.05 (EXPLANATORY: SALARY BASIS) now begins:
    This instruction is intended for use only where there are material factual disputes as to whether the plaintiff was paid on a “salary basis” within the meaning of the FLSA as it pertains to the executive, administrative, or professional exemptions from overtime. See 29 U.S.C. § 213(a)(1); 29 C.F.R. § 541. The instruction should be modified as necessary to appropriately present the material factual issue(s) to the jury. Otherwise, “the ultimate question whether an employee is exempt under the FLSA is an issue of law.” Jarrett v. ERC Properties, Inc., 211 F.3d 1078, 1081 (8th Cir. 2000).
  • Instruction 16.06 (EXPLANATORY: DETERMINING EMPLOYEE STATUS) no longer begins with a note cautioning that it is a proposed instruction.
  • A new Instruction 16.07 (EXPLANATORY: DETERMINING EXEMPT STATUS) has been added.
  • Revised dollar numbers have been inserted in Instructions 16.60 to 16.64.
  • Instruction 16.72 (DAMAGES: WILLFUL VIOLATION) has been removed.
  • Instruction 16.92 (SPECIAL VERDICT FORM: EMPLOYEE STATUS) no longer begins with a note cautioning that it is a proposed instruction.
  • A new Instruction 16.93 (SPECIAL VERDICT FORM: EXEMPT STATUS) has been added.

The former versions of these instructions are archived here.

(09/06/21) (permalink)