Labor & Employment Law Daily Wrap Up, WAGE-HOUR—OVERTIME—8th Cir.: Eighth Circuit remands document review attorney’s MFLSA claims for jurisdictional determination, (Oct 7, 2025)

By Jason Albright, J.D.

Although the employer compensated him for all overtime wages and liquidated damages that he is owed under the MFLSA, he argued that he is also entitled to statutory penalties.

Consilio, LLC was entitled to summary judgment against the Minnesota Payment of Wages Act and Minnesota Wage Theft Act claims—but not the Minnesota Fair Labor Standards Act claims—of a document review attorney who alleged that, despite the employer’s stipulated full payment of the overtime wages and liquidated damages to which he was entitled, he was also owed statutory penalties. Only the state may seek daily average penalties under the MPWA, and the attorney pointed to no statutory authority allowing for civil penalties under the MWTA, but his MFLSA claim for civil penalties may still be viable if Consilio’s overtime policy is still in place. Judge Kobes concurred (Cohen v. Consilio, LLC, No. 24-2079 (8th Cir. Oct. 6, 2025)).

Legal document review. Consilio, LLC, according to the court, is a nationwide legal document review company with offices in Minnesota. The attorney began working for Consilio in 2018 as an hourly licensed attorney document reviewer.

New overtime policy. In July 2019, however, Consilio sent an email to the plaintiff and other Minnesota-based hourly licensed attorney document reviewers, explaining that it would be instituting a new overtime policy in August. The new policy eliminated overtime premium pay and clarified that the attorney and his fellow employees would be paid “at [their] base pay rate” for all hours worked.

Lawsuit. In August 2020, the plaintiff sued Consilio on behalf of himself and a putative class, alleging that the employer failed to pay overtime wages owed to him and similarly situated employees. He alleged that Consilio’s actions violated the Minnesota Payment of Wages Act (MPWA), Minnesota Fair Labor Standards Act (MFLSA), and Minnesota Wage Theft Act (MWTA). He sought overtime pay, liquidated damages, statutory penalties, and injunctive relief.

Overtime and liquidated damages settlement. Consilio paid him and other Minnesota licensed attorney document reviewers $256,010.01 to cover the overtime wages and liquidated damages demanded pursuant to his MFLSA claim. As part of these payments, the plaintiff personally received $3,225.21 in overtime and $462 in liquidated damages. The parties also stipulated that he had “been paid for all overtime wages he alleges he is owed in this lawsuit,” and that “[he] does not dispute that he has also been paid any liquidated damages to which he alleges he is entitled under the [MFLSA].”

No agreement as to penalties. The parties could not agree on penalties, however. The attorney argued he was entitled to $172,080 in average daily wage penalties under the MPWA, $42,000 in penalties under the MFLSA, and $42,000 in penalties under the MWTA. Consilio argued that the Minnesota statutes did not permit him to obtain penalties.

Stipulation, summary judgment for Consilio, and appeal. Following Consilio’s payments, however, the parties stipulated “that the most expedient and efficient path forward [would be] for the Court to hear and decide Defendants’ summary judgment motion on [the MPWA, MFLSA, and MWTA claims] before any further discovery or litigation.” The attorney and Consilio “acknowledge[d] that, if the Court grant[ed] Defendants’ summary judgment motion in full, no claims w[ould] remain and the case w[ould] be fully resolved.”

The district court did just that, and the attorney appealed to the Eighth Circuit.

MPWA claim. The appeals court first affirmed summary judgment against the MPWA claim. Under the statute—which provides that penalties are only available if a state Commissioner first “serve[s] a demand for payment [of wages] on behalf of an employee,” only the state may seek daily average penalties.

MFLSA claim. However, the Eighth Circuit vacated the grant of summary judgment against his MFLSA claim and remanded for the district court to determine its jurisdiction. Noting that his claim for penalties might become moot under Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000) “if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” the appeals court observed that it remained in dispute whether Consilio’s violative overtime policy is still in place, and if it is, his claim for civil penalties may still be viable.

MWTA claim. Finally, the court affirmed summary judgment against the attorney’s MWTA claim, alleging that Consilio failed to provide statutorily required notice of a change in its overtime policy. He stipulated that he received all pay Consilio owes him, and he pointed to no statutory authority allowing for civil penalties under this statute.

Concurrence. In his concurrence, Judge Kobes said he was not convinced that the attorney has standing to seek statutory penalties. Noting that there are differences between the penalties in Friends of the Earth and those available under the MFLSA, and that neither party briefed the issue, he concurred with vacating the judgment and remanding the case, noting that, on remand, the district court may decide the mootness issue first.

The case is No. 24-2079.

Judge: Kelly, J.

Attorneys: Matthew J. Pierce (Asher Gittler & D’Alba) for Bruce Charles Cohen. Grant Daniel Goerke (Littler Mendelson) for Consilio, LLC and Consilio Services, LLC.

Companies: Consilio, LLC; Consilio Services, LLC

Cases: WageHour ClassActions Overtime RemediesDamages StateLawClaims Procedure ArkansasNews IowaNews MinnesotaNews MissouriNews NebraskaNews NorthDakotaNews SouthDakotaNews GCNNews