AGUIRRE v. UNITED STATES
(BORDER PATROL AGENT FLSA OVERTIME LAWSUIT)
STATUS (March 19, 2021): By March 19, 2021, we will have finished mailing a letter to all 5,727 plaintiffs that explains the proposed settlement framework in this Fair Labor Standards Act (FLSA) overtime pay lawsuit, your recovery period, the pay periods that will be included in that recovery period, and the associated damages amount you will receive should the Government recommend the settlement for approval, and the United States Associate Attorney General (“AAG”) follows that recommendation.
Should the settlement ultimately be approved by the AAG, and we believe that it will, half of your settlement amount will be considered backpay from which taxes will be withheld, while the other half will be considered liquidated damages. While no taxes will be withheld from the liquidated damages portion of the settlement, this amount is also considered taxable income.
Should the settlement become final, your settlement award will be reduced by our contingency attorney fee of approximately 25% of your gross settlement amount. We are in the process of negotiating the amount of statutory attorneys’ fees that we are entitled to recover from the Government pursuant to the fee shifting provisions of the FLSA. The statutory fees that we recover from the United States as part of a final settlement will be used to reduce your contingency fee, so you will ultimately pay something slightly less than the 25% contingency fee you agreed to pay us when you retained us.
The Government is currently reviewing each plaintiffs’ proposed settlement amount to determine if, with the payment of the settlement, it causes any plaintiff to exceed the overtime pay cap. If any plaintiff has that issue, we will reach out directly to that plaintiff.
SETTLEMENT FRAMEWORK
The settlement damages will be computed by multiplying the negotiated per pay period settlement amount of $117.83 by the total number of pay periods that the 5,727 border patrol agent plaintiffs worked during the recovery period as non-supervisory border patrol agents.
Based on our review and analysis of the pay data provided to us by the Government for each plaintiff, there are a total of 330,779 pay periods in this lawsuit.
To review your points, please click on the Heatmap set forth below. Each plaintiff is listed on the Heatmap with that plaintiff’s included and excluded pay periods during each plaintiff’s recovery period. Because of the size of the files, the Heatmap is divided into three parts but each plaintiff is listed alphabetically.
The column on the Heatmap entitled “3yr Elig Date” is the date that is three years prior to the date that each plaintiff’s claim was filed in court. Importantly, this date is the beginning of each plaintiff’s recovery period. This is because the FLSA has a three-year statute of limitations that looks backward three years from the date that a plaintiff’s consent form is filed in Court. So, even if you worked as a non-supervisory border patrol agent prior to your “3 Yr Elig Date,” that time is excluded from your recovery period because it is outside of the statute of limitations. Similarly, if you did not become a non-supervisory border patrol agent until after your “3 Yr Elig Date,” that time is excluded because this case and settlement apply only to non-supervisory border patrol agents. This pre-claim period will be denoted by a black bar on the Heatmap.
In addition, as in Abad v. U.S., the following pay periods are excluded from the pay period point calculation, and are denoted on the Heatmap as follows:
CANINE CASE: Pay periods for which a plaintiff already recovered damages in one of the canine lawsuits handled by our law firm;
0 WORK DAYS: Pay periods in which a plaintiff was on paid or unpaid leave, or otherwise in a non-work status for an entire pay period due to, for example, discipline, workers’ comp, or military leave (in other words, any pay period in which a plaintiff did not work at least one full day is excluded from the recovery);
SUPV BPA: Pay periods in which a plaintiff was a supervisor; and
NOT BPA: Pay periods in which a plaintiff occupied a position other than a non-supervisory border patrol agent position.
The end of the recovery period for all plaintiffs is January 10, 2016 (PP26 of 2015) which is the date that the border patrol agents were reclassified FLSA nonexempt to exempt from the FLSA. Of course, if a plaintiff left a non-supervisory border patrol agent position prior to January 10, 2016, his/her termination date will be the last date of his/her recovery period.
Applying these parameters, the number listed in the far-right column on the Heatmap is your total number of pay periods in the recovery. To compute your gross settlement amount, simply multiple the number in the far-right column (“Total Include All PP”) by $117.83. Again, fees and taxes will be deducted from this gross amount.
If you believe that you have been given too many or too few pay periods, please contact us immediately, in writing by email at settlement@mselaborlaw.com on or before March 31, 2021. If you believe that you have been given too few points, you must provide us with documentation to substantiate that the Government’s information regarding when you worked as a non-supervisory border patrol agent during your recovery period is incorrect. If we do not hear from you on or before March 31, 2021, then your pay period count and the associated dollar value of that pay period count will be considered final. There is no need to contact us if you agree to the number of points you have been credited.
NEXT STEPS
Once any valid pay period disputes are resolved, and once we have agreed with the United States on the amount of statutory attorneys’ fees owed, we will make a formal settlement offer to the Government and draft a settlement agreement that will be based on the Abad v. U.S. Settlement Agreement. Under the terms of that Agreement, you will agree to dismiss your claims and you will agree that you are not in, and will not file, any other lawsuits asserting the same claims for the same time periods at issue in this lawsuit. In return, the Government will pay you the above described damages.
Due to the amount of money involved in this lawsuit, any tentative settlement reached must be approved by the AAG of the United States. We are unsure of how long this will take, but since this case involves the exact same claims as the Abad case, we are hopeful that the settlement will move through the approval process more quickly than the Abad settlement did. Once the settlement is signed in this case, it will take several more months for the United States Department of Treasury Judgment Fund to make the payments to all plaintiffs. In Abad, it took the Government three months from signing the settlement agreement to pay all 6,108 plaintiffs. We will continue to update the website with developments and will provide you with your settlement money once we receive it. We are optimistic that payment will be made in 2021.