Burr & Smith, LLP regularly co-counsels with trial counsel to successfully brief and orally argue novel and complex issues concerning interpretation of wage and hour statutes, guidelines, and laws.


• Freixa v. Prestige Cruise Services, LLC:  The Eleventh Circuit reversed the trial court’s ruling of summary judgment for defendants because the trial court erred in allowing the amount of commissions to be averaged over a year rather than being apportioned to the in which the commission was earned.   The Eleventh Circuit clarified that in an exemption under 29 U.S.C. § 207(i) “federal law bars allocating a commission payment across weeks that fall outside the period in which the payment is earned.”


• Polycarpe v. E & S Landscaping Services, Inc.: Litigating Fair Labor Standards Act claims for unpaid overtime and retaliation against E & S Landscaping Services.  The issue of enterprise coverage was contested in this matter and was favorably resolved in the plaintiffs’ favor in Polycarpe v. E & S Landscaping Service, Inc., 616 F.3d 1217 (11th Cir. 2010).  Burr & Smith represented the Plaintiffs as appellate counsel.  In Polycarpe, the Eleventh Circuit clarified the factors by which to determine whether an employee is covered by the Fair Labor Standards Act under the enterprise coverage prong of the FLSA.  As the Eleventh Circuit explained that, in the context of enterprise coverage, “[w]hether an item counts as ‘materials’ . . . will depend on two things: 1) whether, in the context of its use, the item fits within the ordinary definition of ‘materials’ under the FLSA [i.e., the item is a tool or other article necessary for doing or making something] and 2) whether the item is being used commercially in the employer’s business [i.e. the item must have a significant connection with the employer’s commercial activity].”  616 F.3d at 1226-26.


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