Jottings By An Employer's Lawyer

Monday, March 24, 2003

U.S. Government to Argue That FLSA Cases Are Removable


The Supreme Court today granted [p. 2 pdf] the Solicitor General's motion to participate in oral arguments in Breuer v. Jim's Concrete which will be heard on April 2, 2003. Earlier, the Solicitor General filed an amicus brief in support of the respondent's position that Fair Labor Standards Act cases filed in state court can be removed to federal court on the basis of federal question jurisdiction. The petitioner's argument relies on the language of the FLSA, ""[a]n action to recover * * * may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees." 29 U.S.C. 216(b).

In the brief, co-signed by the Acting Solicitor of Labor, the importance of having uniform interpretations of the FLSA is pointed out. Making the case even more important, it suggests that the outcome of the decision could also determine whether cases brought under the FMLA and the Employee Polygraph Protection Act can be removed since they contain similar language. Even more broadly, it raises the possibility it could impact removal under Title VII and the ADEA, even though those statutes have slightly different standards. Since it seems to me that removal is clearly appropriate, and because the Supreme Court has in the past taken a narrow view of removal statutes, it is certainly good for the Solicitor General to be weighing in, given the support for removal. Hopefully, this will be one case the Supreme Court grants writ where it does not reverse the lower court.

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