Labor & Employment Law Daily Wrap Up, WAGE-HOUR—11th Cir.: Assisted living facility improperly excluded COVID-19 hazard pay from overtime calculations, (May 12, 2026)

By Todd Harrison, J.D.

Although the employer issued checks to employees in an attempt to settle the case, three plaintiffs never deposited their checks, which did not moot their claims.

Affirming in full a district court’s rulings in a case concerning FLSA and FMLA claims brought by a group of healthcare workers against a retirement and assisted living facility, the Eleventh Circuit, in an unpublished opinion, determined that the wage-hour claims asserted by three of the plaintiffs were not mooted because they did not deposit the settlement checks proffered by the employer and their overtime claims were not de minimis. The court further found no error in the grant of summary judgment to the employer on claims surrounding retention pay based on improper pleading, nor was the grant of summary judgment on claims concerning unpaid lunch breaks improper due to lack of evidence. The court also affirmed summary judgment against the FMLA claims (Swope v. Episcopal Foundation of Jefferson County dba St. Martin’s in the Pines, No. 24-12984 (11th Cir. May 8, 2026, unpublished)).

St. Martin’s in the Pines is a retirement and assisted living facility. During the height of the COVID pandemic, the first named plaintiff in this case worked at the facility as a certified nursing assistant.

COVID pay. During the pandemic, St. Martin’s instituted a series of financial incentives to encourage employees to take shifts, including shifts in its newly established COVID ward. In addition to incentives that boosted employees’ hourly rates of pay, St. Martin’s also paid employees two, one-time “retention bonuses” at $100 apiece to reward those who stayed through the pandemic.

“PRN” status. In July 2021, the mother of the first named plaintiff in this action underwent a kidney transplant. The following month, the plaintiff submitted a letter to St. Martin’s putting in her two weeks’ notice, thanking the company for the opportunity, and providing “notice” that she would be going on “PRN” status.

“PRN” stands for “per requested need,” meaning such employees would work on an as-needed basis. Full-time employees may apply for this status with advance notice, subject to availability. St. Martin’s treated the plaintiff’s notice as a resignation and then informed her it would have offered her FMLA leave but for her resignation.

Lawsuit. Subsequently, the plaintiff filed this lawsuit, asserting claims under the FLSA and the FMLA. She asserted FLSA claims on behalf of herself and other similarly situated employees, seeking unpaid overtime and liquidated damages. She also maintained an individual claim for retaliatory termination under the FMLA.

Before any collective action was certified, another employee filed a written consent to opt into the proposed class, thus making her a party plaintiff.

Settlement checks. Upon initiation of this lawsuit, St. Martin’s sought professional guidance from an accounting firm to determine whether its method of calculating COVID-related compensation was accurate. Ultimately, it was determined that the incentive pay was improperly excluded from overtime calculations. The retention bonuses were considered discretionary and were not included in the calculations.

Checks were issued to 12 current and future employees, including the first named plaintiff and the party plaintiff. One eligible employee never received a check and the plaintiffs opted not to cash their checks.

District court. After the checks had been issued, the first named plaintiff moved to conditionally certify two FLSA collective actions, one based on the COVID overtime payment claim and another based on an automatic lunch deduction claim. The district court denied St. Martin’s motion for partial summary judgment as to the FLSA claim, finding the two plaintiffs had a live case or controversy because they had never deposited their settlement checks. The court also denied certification of the lunch deduction claim class because no such claim was pled in the amended complaint.

Once the scope of the class was determined and notice was issued, 11 former employees filed consents to join the FLSA collective, a number that was later reduced to 10 when one plaintiff was dismissed.

The two initial plaintiffs along with the one employee who never received a settlement check moved for partial summary judgment on their FLSA claims. St. Martin’s moved to dismiss the opt-in plaintiffs and to decertify the collective action. It also sought summary judgment on all claims, arguing the FLSA claims were moot and de minimis. As to the first named plaintiff’s individual FMLA claims, it contended that she had not properly requested leave.

Denying St. Martin’s motion to dismiss the opt-in plaintiffs and directing that they be added as named plaintiffs, the district court did grant summary judgment as to the opt-in plaintiffs’ FLSA claims. It further granted St. Martin’s motion for summary judgment as to the FMLA claims. Finally, it granted summary judgment in favor of the first two plaintiffs and the employee who had never received a settlement check on their hazard pay overtime claim, awarding judgment for the amount St. Martin’s agreed it owed in September 2022, and ordering the company to reissue those settlement checks. The plaintiffs then filed this notice of appeal and St. Martin’s filed its notice of cross-appeal.

Issues on appeal. Four issues were before the court on appeal. First, whether the district court erred in granting partial summary judgment to the three plaintiffs on their FLSA overtime claims based on the previously issued settlement checks. Second, whether the district court erred in granting summary judgment to St. Martin’s on the remaining FLSA claims based on its conclusion that the two retention bonuses were properly excluded from the overtime calculation. Third, whether the district court erred in granting summary judgment to St. Martin’s on the first named plaintiff’s FLSA claim for unpaid work during lunch breaks. And finally, whether the district court properly granted summary judgment to St. Martin’s on the individual FMLA interference and retaliation claims. The court here addressed each issue in turn.

Not moot. First, the court considered St. Martin’s argument that the FLSA overtime-pay claims asserted by the three plaintiffs who did not deposit their checks were moot. The court noted that the Supreme Court has explained that “an unaccepted settlement offer... does not moot a plaintiff’s case.” Campbell-Ewald Co., 577 U.S. at 165. Thus, the settlement offer alone did not moot their claims.

As to St. Martin’s claim that the checks represented full statutory relief, the court explained that mootness depends on whether it can provide redress, not whether a claim was improperly raised. Here, the plaintiffs sought summary judgment for the partial amount that St. Martin’s agreed it owed, but the plaintiffs never agreed that the checks constituted everything that was owed to them. Accordingly, the court found that a live case or controversy existed in this instance.

Not de minimis. With regard to St. Martin’s contention that the district court erred in granting summary judgment to the three plaintiffs because their hazard pay FLSA claims were de minimis, the appellate court was unmoved, rejecting the argument that principles of de minimis common law should apply to this case. Doing so would frustrate the purpose of the FLSA, said the court, which was created in part to protect the “trifles” of working time that St. Martin’s had here asked the court to ignore. Thus, the summary judgment ruling in favor of these three plaintiffs was affirmed.

Retention bonuses. Next, the court addressed the issue of whether the district court erred in granting summary judgment for St. Martin’s on the remaining FLSA overtime-pay claims. The resolution of these claims turned on whether the two retention bonuses should have been included in the overtime calculation. The appellate court affirmed the district court’s finding that the plaintiffs failed to plead a claim for the retention bonuses, noting the complaint never mentioned them nor did the mention of them in motion practice suffice to amend the complaint.

Lunch breaks. Turning to the FLSA claim for unpaid work incurred during lunch breaks, the court found that even assuming the first named plaintiff had sufficiently asserted an individual claim for automatic break deductions, she had failed to meet her initial evidentiary burden. She did not present any evidence demonstrating how much of her unpaid breaks were spent working, instead relying on speculative statements like, “Maybe two, three days out of the week” where her meal breaks were interrupted. Accordingly, summary judgment was properly granted to St. Martin’s as to this claim.

FMLA claims. Finally, the court addressed the first named plaintiff’s individual claims for FMLA interference and retaliation. With regard to the interference claim, the court focused on the FMLA’s notice requirement. Because the plaintiff’s mother had a scheduled surgery without any unforeseen post-surgery complications or emergencies, the plaintiff’s need for leave was foreseeable such that she was required to make St. Martin’s aware of the anticipated timing and duration of the leave. The purported request failed to provide St. Martin’s with the approximate duration of the leave, instead stating that the plaintiff needed to take “some time off.” Such notice was inadequate under the FMLA, and the district court properly granted summary judgment in favor of St. Martin’s on the FMLA interference claim.

As to the retaliation claim, the court’s holding was the same, noting that adequate notice is a necessary element under the FMLA when an employee’s need is foreseeable.

The case is No. 24-12984.

Judge: Moreno, F.

Attorneys: Mary Stanfield Bubbett (J. Forester Jackson) for Angela Blake, Clara Butler, Melanie Hough, Melissa Simmons Lewis, Andrea Turner, and Nyesha Swope. Rachel V. Barlottas (Baker Donelson Berman Caldwell & Berkowitz) for Episcopal Foundation of Jefferson County dba St. Martin’s in the Pines.

Companies: Episcopal Foundation of Jefferson County; St. Martin’s in the Pines

Cases: WageHour ClassActions Overtime WorkingTime Discharge EmployeeLeave Procedure Covid19 AlabamaNews FloridaNews GeorgiaNews