United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE
se plaintiff Misty Wesley alleges that Defendant
Accessible Home Care (“AHC”) failed to pay her
federal minimum wage and overtime compensation when she was
employed as a live-in caregiver in 2017. AHC has filed a
second motion to dismiss Wesley's Complaint on mootness
grounds based on AHC's most recent Rule 68 offer of
judgment. [Record No. 74] The motion will be granted because
there is no question that AHC's offer of judgment gives
Wesley full relief regarding her Fair Labor Standards Act
plaintiff must maintain a live controversy throughout an
action. A case becomes moot when interim events deprive the
court of the ability to redress the plaintiff's injuries.
Arizonans for Official English v. Arizona, 520 U.S.
43, 67 (1997); Int'l Union, United Auto, Aero, Agr.
& Implement Workers of Am. v. Dana Corp., 697 F.2d
718, 721 (6th Cir. 1983). As this Court has explained
previously, a Rule 68 offer of judgment may moot a
plaintiff's claim under certain circumstances. [Record
No. 61, p. 4-4 (discussing Campbell-Ewald Co. v.
Gomez, 136 S.Ct. 663 (2016) & Mey v. North Am.
Bancard, LLC, 655 Fed.Appx. 332 (6th Cir. 2016)).] Here,
those circumstances have been satisfied because: 1) AHC's
offer of judgment satisfies Wesley's demand for relief
regarding the claims she is permitted to bring and 2) AHC has
deposited the funds in the Court's registry for payment
to Wesley upon entry of Judgment.
surviving claims are based on her allegations that the
defendant failed to pay her minimum wage and overtime during
her employment as a live-in caregiver, as required by the
FLSA, 29 U.S.C. §§ 206, 207. Wesley alleges that
she held this position for about six months. [Record No. 43,
p. 2] AHC's payroll records corroborate this allegation,
indicating that Wesley provided live-in services first on
June 9, 2017, and the last on December 9, 2017. [Record No.
74-4, pp. 4-10] Wesley complains that, during this period,
she worked twenty-four hour shifts three to four times per
week and was paid a flat fee of $170.00 per shift. AHC has
conceded Wesley's allegations for purposes of its motion
and has submitted records showing the days Wesley worked.
[Record No. 74-4, pp. 4-10] Wesley has not disputed the
accuracy of these records, which correspond with the
allegations regarding her work schedule. [See Record
used its payroll records, along with Wesley's suggested
calculations, to determine the compensation owed to her.
Wesley began working twenty-four-hour shifts during the first
full week of June 2017, when she also worked with patients on
an hourly basis at a rate of $9.50 per hour. [See
Record Nos. 10, 74-4.] When employees perform two different
types of work for different rates of pay during a single
workweek, the regular rate for that week is the weighted
average of those rates. 29 C.F.R. § 778.115. The
weighted average is determined by computing the
employee's total earnings for the week and dividing the
earnings by the total number of hours worked at all jobs.
Id. Here, Wesley worked 18.25 hours as a CNA and 72
hours as a live-in caregiver, earning a total of $683.38.
Based on these values, Wesley's regular rate for the week
of June 5, 2017 is $7.57. Forty hours at this rate equals
$302.80. Her overtime compensation-50.25 hours times one and
one-half the regular rate ($11.36)- equals $570.84.
Therefore, Wesley's compensation for this week should
have been $873.64, not $683.38. As a result, she is entitled
to $190.26 with respect to the work week of June 5, 2017.
remaining calculations are more straightforward because
Wesley worked at a single rate of pay for the remainder of
her employment. Employees may be paid a flat sum for a
day's work or for doing a particular job. See 29
C.F.R. 778.112. The employee's regular rate normally is
determined by totaling all sums received at such rates and
dividing by the total number of hours actually worked.
Id. But such an employee's regular rate cannot
fall below the federally-mandated minimum wage.
noted in her Complaint that $170.00, divided by twenty-four
hours is only $7.08 per hour-lower than the $7.25 minimum
wage. See 29 U.S.C. § 206(a)(1)(C). [Record No.
10, p. 5] She contends that the pay rate for her live-in
position should be increased to $7.25 per hour. [Record No.
53] Since overtime compensation must be a rate “not
less than one and one-half times [an employee's] regular
pay, ” Wesley argues she is entitled to overtime
compensation at a rate of $10.88 per hour. Id.
specific dates, hours worked, and amounts of pay she actually
received are as follows:
Week of June 15, 2017-72 hours--$510.00
Week of June 21, 2017-72 hours--$510.00
Week of June 27, 2017-72 hours--$510.00
Week of July 3, 2017-96 hours--$765.00
Week of July 10, 2017-96 ...