by Michael Fox
The 9th Circuit does not always accept the invitation of employees seeking to further their interests at the expense of their employers, thank goodness. In this example, a salaried employee, who apparently believed that he had been denied overtime in a conspiracy of high ranking employees of his employer, who knew he was entitled to overtime. Rather than just an overtime claim, he sought to recover under RICO. The argument was that the repeated mailing of his paycheck twice a month, without paying him the overtime that the employer knew or should have known was owed was mail fraud, thus forming the predicate necessary for a RICO claim. Miller v. Yokahoma Tire Co. (9th Cir. 1/12/04) [pdf]. Although taking a somewhat circuitous route to get there, holding it could not be fraud because it was merely an opinon on domestic law, the 9th Circuit ultimately affirmed the district court's dismissal for failure to state a claim on which relief can be granted.