     Case: 11-30671   Document: 00511931802   Page: 1   Date Filed: 07/24/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                                  July 24, 2012

                                 No. 11-30671                   Lyle W. Cayce
                                                                     Clerk

JOHN T. MARTIN, an individual; JOHNATHON R. MARTIN, an individual;
BRADLEY D. KEYES, an individual; MARTY BOGER, an individual,

                                          Plaintiffs-Appellants
v.

SPRING BREAK ‘83 PRODUCTIONS, L.L.C., a California Limited Liability
Company; SPRING BREAK '83 DISTRIBUTION, L.L.C., a California Limited
Liability Company; BIG SKY MOTION PICTURES, L.L.C., a California
Limited Liability Company; SPRING BREAK '83 LOUISIANA, L.L.C., a
Louisiana Limited Liability Company; GEORGE BOURS, an individual;
MARS CALLAHAN, an individual; RANDY CHORTKOFF, an individual;
JOHN HEREMANSEN, an individual,

                      Defendants-Third Party Plaintiffs-Appellees

UNIDENTIFIED PARTIES, Does 1 through 10,

                                          Defendants - Appellees
v.

INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES,
Local 478; INTERNATIONAL ALLIANCE OF THEATRICAL STAGE
EMPLOYEES, Local 798; INTERNATIONAL ALLIANCE OF THEATRICAL
STAGE EMPLOYEES, MOVING PICTURE TECHNICIANS, ARTISTS AND
ALLIED CRAFTS OF THE UNITED STATES, ITS TERRITORIES AND
CANADA,

                               Third Party Defendants - Appellees
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                                No. 11-30671


                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before JONES, Chief Judge, and OWEN and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
      Appellants John T. Martin (“J. T. Martin”), Johnathon R. Martin (“J. R.
Martin”), Bradley D. Keyes (“Keyes”), and Marty Boger (“Boger”) appeal the
district court’s grant of summary judgment on their Fair Labor Standards Act
(“FLSA”) claims in favor of Appellees Spring Break ‘83 Louisiana, L.L.C.
(“Spring Break Louisiana”), Mars Callahan (“Callahan”), George Bours
(“Bours”), John Hermansen (“Hermansen”), and Randy Chortkoff (“Chortkoff”).
We AFFIRM the district court’s judgment, concluding that individual Appellees
Callahan, Bour, Hermansen, and Chortkoff are not employers under the FLSA
and that Appellants released any FLSA claims against Louisiana Spring Break
by accepting settlement payments for those claims.
                       FACTS AND PROCEEDINGS
      Appellants J. T. Martin, J. R. Martin, Keyes, and Boger were employed as
grips—lighting and rigging technicians in the filmmaking and video production
industries—with Spring Break Louisiana for the filming of Spring Break ‘83 (the
“movie”). Filming took place between October 6, 2007 and December 22, 2007
in and around Hammond, Louisiana. Throughout this filming period, Appellants
were members of the International Alliance of Theatrical Stage Employees,
Local 478 (the “Union”). In October 2007, the Union entered into a Collective
Bargaining Agreement (the “CBA”), with Spring Break Louisiana. Under the
CBA, Spring Break Louisiana recognized “the Union as exclusive representative
of the employees in the bargaining unit.” In addition, the CBA outlined the




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                                      No. 11-30671

procedure for Union members to follow when filing grievances against Spring
Break Louisiana.
       Toward the end of production of the movie, a number of parties to the
CBA, including Appellants, filed a grievance against Spring Break Louisiana
alleging that they had not been paid wages for work they performed. The Union
sent a representative to investigate the merits of the claims.                  After his
investigation, the representative concluded that it would be impossible to
determine whether or not Appellants worked on the days they alleged they had
worked. The Union and Spring Break Louisiana entered into a Settlement
Agreement pertaining to the disputed hours allegedly worked by Appellants.
       Before the Settlement Agreement was signed by Union representatives on
November 3, 2009, Appellants filed a lawsuit on June 16, 2009 in the Superior
Court of the State of California for the County of Los Angeles against Spring
Break Productions ‘83, L.L.C.; Big Sky Motion Pictures, L.L.C.; Spring Break
Louisiana; George Bours; John Hermansen; Mars Callahan; and Randy
Chortkoff.1 Appellees then removed the case to the United States District Court
for the Central District of California, which subsequently transferred the case
to the United States District Court for the Eastern District of Louisiana.
       In a 20-page Order and Reasons, the district court granted Appellees’
motion for summary judgment on June 24, 2011. Appellants appeal that order,
contending that the district court erred in granting summary judgment in favor
of the Appellees because: (1) Callahan, Bours, Hermansen, and Chortkoff were




       1
         According to the declaration of Appellant J. T. Martin, Appellee Callahan wrote,
directed, and produced the movie; Appellees Bours and Hermansen were in charge of
overseeing the final payment of wages and investigating and resolving employee complaints
relating to payment of wages; and Appellee Chortkoff was an executive producer for the movie
and was in charge of all financial matters, including the payment of wages.

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                                        No. 11-30671

employers under the FLSA and (2) Appellants’ claims under the FLSA were not
released by the Settlement Agreement.2
                               STANDARD OF REVIEW
       “This Court reviews summary judgment de novo, using the same
standards as the district court.” Haggard v. Bank of Ozarks Inc., 668 F.3d 196,
199 (5th Cir. 2012). Summary judgment is only proper where there is no
“genuine dispute as to any material fact.” Fed. R. Civ. P. 56. When reviewing a
grant of summary judgment, we review the facts drawing all inferences most
favorable to the party opposing the motion. Reid v. State Farm Mut. Auto Ins.
Co., 784 F.2d 577, 578 (5th Cir. 1986). Moreover, we “refrain from making
credibility determination or from weighing the evidence.” Deville v. Marcantel,
567 F.3d 156, 163–64 (5th Cir. 2009). “If the record, taken as a whole, could not
lead a rational trier of fact to find for the non-moving party, then there is no
genuine issue for trial and summary judgment is proper.” Weber v. Roadway
Exp., Inc., 199 F.3d 270, 272 (5th Cir. 2000) (citations omitted).
                                       DISCUSSION
1. Classification of Callahan, Bours, Hermansen, and Chortkoff as employers
under the FLSA




       2
          Appellants are abandoning their claims, pursued in district court, for breach of
contract and violations of the LWPA, as well as all claims against Spring Break ‘83
Productions, L.L.C.; Spring Break ‘83 Distribution, L.L.C.; and Big Sky Motion Pictures,
L.L.C. The only remaining claims are Appellants’ FLSA claims against Defendant-Appellees
Spring Break Louisiana, Callahan, Bours, Hermansen, and Chortkoff. Defendant-Appellees
filed a third party complaint in district court against International Alliance of Theatrical Stage
Employees, Local 478; International Alliance of Theatrical Stage Employees, Local 798; and
International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and
Allied Crafts of the United States, Its Territories and Canada. This third-party complaint was
dismissed as moot in the district court’s June 24, 2011 Judgment dismissing Plaintiffs-
Appellants’ claims.

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                                        No. 11-30671
       Appellants contend that the district court erred by finding that Callahan,
Bours, Hermansen, and Chortkoff were not employers under the FLSA.3 The
district court concluded that the evidence, even when viewed in the light most
favorable to the Appellants, did “not suggest that Plaintiffs depended upon the
individual Defendants or that any of these Defendants could independently
exercise control over the work situation.” We conclude that the district court did
not err.
       We apply an “economic reality” test to determine whether an individual
or entity is an employer for the purposes of the FLSA. Gray v. Powers, 673 F.3d
352, 354–55 (5th Cir. 2012) (citing to Goldberg v. Whitaker House Co-op, Inc.,
366 U.S. 28 (1961), to affirm summary judgment holding that appellee was not
an employer under FLSA).4 “To determine whether an individual or entity is an
employer, the court considers whether the alleged employer: ‘(1) possessed the
power to hire and fire employees; (2) supervised or controlled employee work
schedules or conditions of employment; (3) determined the rate or method of
payment; and (4) maintained employee records.’” Gray, 673 F.3d at 355 (quoting
Williams v. Henagan, 595 F.3d 610, 615 (5th Cir. 2010)). “The dominant theme
in the case law is that those who have operating control over employees within
companies may be individually liable for FLSA violations committed by the
companies.” Id. at 357. We examine the economic reality test factors, viewing
all evidence in the light most favorable to Appellants, for each of the four
individual Appellees.        Notably, the sole source of evidence for Appellants’

       3
         This question is determinative as to whether or not Callahan, Bours, Hermansen, and
Chortkoff may be liable for Appellants’ alleged unpaid wages. Under the FLSA, any employer
who violates the FLSA minimum wage statute, 29 U.S.C. § 206, or the FLSA maximum hours
statute, 29 U.S.C. § 207, is “liable to the employee or employees affected in the amount of their
unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in
an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b).
       4
         The district court could not cite to Gray v. Powers, which was not yet issued at the
time of the district court’s judgment, for a clear statement of the economic reality test.

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                                   No. 11-30671
argument that Callahan, Bours, Hermansen, and Chortkoff are employers under
the FLSA is the declaration of J. T. Martin (“Martin Declaration”).
      A) Callahan
      Relevant to the first economic reality test factor, the Martin Declaration
alleges that Callahan had the ability to hire and fire employees and that
Appellant Martin had personally witnessed Callahan terminate employees while
working on the set. Therefore, Appellants provided evidence that this first factor
should weigh in favor of finding Callahan to be an employer. However, the
Martin Declaration contains no evidence that the other three economic reality
test factors weigh in favor of finding Callahan to be Appellants’ employer. In
fact, Appellants presented nothing to rebut Callahan’s sworn declaration in
which he states he was not Appellants’ direct supervisor, he did not hire the
Appellants nor change their pay, he did not maintain documentation of the
Appellants’ employment, and he did not exercise substantial control over the
terms and conditions of the Appellants’ work.
      Specifically as to the second economic reality test factor, the Martin
Declaration tersely states that Callahan, “would issue instructions to myself as
well as other employees.”        However, considering the evidence that Joy
Czerwonky, the Line Producer, was the supervisor of all departments of the
production, including the direct supervision of the Appellants, this single
assertion fails to show that Callahan had control over work schedules or
employment conditions. See Weber, 199 F.3d at 272 (5th Cir. 2000) (“If the
record, taken as a whole, could not lead a rational trier of fact to find for the non-
moving party, then there is no genuine issue for trial and summary judgment is
proper.”); cf. Reich v. Circle C. Invs., Inc., 998 F.2d 324, 327–28 (5th Cir. 1993)
(using economic reality analysis to hold that dancers at a club are employees
where alleged employer set dancers’ weekly work schedules, fined dancers for



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                                  No. 11-30671
absences and tardiness, and controlled dancers’ dress, time spent in dressing
room, music choice, restroom usage, and behavior at the club when not dancing).
      Specifically as to the third economic reality test factor, Appellants assert
in the Martin Declaration that in response to a complaint about late pay checks,
Callahan stated that he “would make sure that the employees were paid.”
However, the Martin Declaration itself separately states that “[w]hile working
on Spring Break ‘83, any payroll, as well as that for all the crew was handled by
a payroll company known as Axium.” Because, according to Appellants’ own
evidence, payroll for all the crew was handled by Axium, a separate payroll
company, the record, even viewed in the light most favorable to Appellants,
shows that Callahan did not have control over the rate or method of employee
payment. See Gray, 673 F.3d at 357 (holding that evidence that an individual
occasionally signed checked and that employees told him how much money they
made in tips did “not indicate that [the individual] determined the employees’
rate or method of payment”).
      Finally, as to the fourth economic reality test factor, Appellants presented
no evidence that Callahan maintained any employment records. Thus, the
fourth factor does not support a finding that Callahan was an employer under
the FLSA. See Gray, 673 F.3d at 357.
      B) Bours and Hermansen
      Appellants have presented no evidence of Bours or Hermansen’s
fulfillment of the four economic reality test factors. Appellants did not rebut
Bours's sworn declaration that he was “largely responsible for the editing and
post-production aspects of the film, and had very little to do with the day to day
operation of the shooting” of the movie; he did not hire employees or change
employees’ pay; he did not make any recommendations regarding the hiring of
the Appellants; he did not make decisions regarding the Appellants’ pay and did
not supervise the Appellants; he did not maintain documentation of the

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                                  No. 11-30671
Appellants’ employment; and he did not exercise substantial control over the
terms and conditions of the Appellants’ work. Similarly, Appellants did not
rebut Hermansen’s sworn declaration that he was not involved with the shooting
and production of the movie; he was employed by River Sig, L.L.C. for the
production of a television show named Casting Call; he was also employed by
Spring Break Louisiana as a producer but was largely responsible for the
editing, music and post-production aspects of the film; he did not hire Appellants
or change Appellants’ pay for the movie; he did not make any recommendations
regarding the hiring of the Appellants; and he did not make decisions regarding
the Appellants’ pay and did not supervise the Appellants.
      The Martin Declaration instead asserts broadly that Bours and
Hermansen had “complete authority to investigate and resolve any issues
relating to the final payment of wages.” Although this contention relates to the
third economic reality test factor, determination of rate or method of payment,
this evidence will be considered in the context of the whole record of economic
reality test proof. See Wirtz v. Pure Ice Co., 322 F.2d 259, 262–63 (8th Cir. 1963);
cf. Donovan v. Grim Hotel Co., 747 F.2d 966, 972 (5th Cir. 1984) (holding that
individual was an employer where “[i]t was only he who could authorize
compliance with” the FLSA, including wage provisions). Appellants presented
no evidence that Bours or Hermansen determined the rate or method of
payment, only that they could investigate payment-related complaints. The
power to oversee dispute resolution concerning pay is not determinative of the
power to make decisions regarding the rate or method of payment. Hermansen’s
sworn declaration correspondingly states that he and Bours were only involved
with dispute resolution after the grievance was filed through the Union.
      C) Chortkoff
      Appellants presented no evidence that factors one, two, or four of the
economic reality test weigh in favor of finding that Chortkoff was an employer

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                                  No. 11-30671
of Appellants. Appellants presented no evidence to rebut Chortkoff’s sworn
declaration in which he states that he was not involved with the day-to-day
operation of the filming of the movie; he was not the Appellants’ supervisor, nor
did he direct them in any way; he did not hire the Appellants or change their
pay; he did not supervise the Appellants; he did not maintain documentation of
the Appellants’ employment; and he did not exercise substantial control over the
terms and conditions of the Appellants’ work. As to the third factor, Appellants
point to the Martin Declaration, which states that Chortkoff “was in charge of
all the financial matters of the company including the payment of wages.”
However, again according to Appellants’ own evidence, payroll for all the crew
was handled by Axium, a separate payroll company. Correspondingly, Chortkoff
states in his sworn declaration that he did not change Appellants’ pay. Thus,
Appellants’ unsubstantiated contradistinction that Chortkoff “was in charge of
all the financial matters of the company including the payment of wages” is not
determinative. In the absence of any other economic reality factor, the district
court could reasonably have found no genuine dispute as to employer status. See
generally Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); Hopper
v. Frank, 16 F.3d 92, 97 (5th Cir. 1994).
      In sum, as held by the district court, whereas the Martin Declaration
failed to demonstrate the economic reality test factors, the individual Appellees
presented evidence that they were not employers of Appellants under the FLSA.
Though Appellants presented evidence that, viewed in the light most favorable
to them, points to the first economic reality test factor related to Callahan, the
district court properly concluded that a rational trier of fact would find no
genuine issue of material fact where the three remaining factors, as applied to
Callahan, demonstrated that he was not Appellants’ employer. See Gray, 673
F.3d at 357. As to Bours, Hermansen, and Chortkoff, the district court similarly
did not err because no reasonable jury could have found them to be Appellants’

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                                       No. 11-30671
employers where none of the economic reality test factors dictated that
conclusion. See id. (“While each element need not be present in every case,
finding employer status when none of the factor is present would make the test
meaningless.”). Accordingly, the district court did not err by finding that
Callahan, Bours, Hermansen, and Chortkoff were not employers of the
Appellants.
2. Effect of the Settlement Agreement on FLSA claims against Spring Break
Louisiana
       The district court concluded that the plain language of the Settlement
Agreement “is binding upon the [Appellants] in their individual capacities and
prohibits those individuals from pursuing future legal action against Spring
Break Louisiana after receiving their settlement payments.” We agree.5 The
Settlement Agreement, in relevant part, states:
       The Union on its own behalf and on behalf of the IATSE Employees
       agrees and acknowledges that the Union has not and will not file
       any complaints, charges or other proceedings against Producer, its
       successors, licenses and/or assignees, with any agency, court,
       administrative body, or in any forum, on condition that payment in
       full is made pursuant to the terms of this Settlement Agreement.
The Settlement Agreement also states that the Union “has the full power and
authority to enter into this Settlement Agreement on behalf of IATSE Employees
and bind them in accordance with the terms hereof.” By this plain language, the
Appellants, who were IATSE Employees, were bound by its terms. Appellants
contend, however, that the Settlement Agreement is unenforceable because they
never signed it or agreed to it—instead, the Settlement Agreement was signed
by Union representatives.          However, Appellants do not dispute that they


       5
          Because we have determined that the district court did not err in holding that
Callahan, Bours, Hermansen, or Chortkoff were employers under the FLSA, our analysis in
this section is limited to the effect of the Settlement Agreement upon Spring Break Louisiana’s
liability to Appellants.

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                                       No. 11-30671
received full payment for their claims pursuant the terms of the Settlement
Agreement.      Nor do Appellants dispute that they cashed the Settlement
Agreement payment checks they received. The Appellants were members of the
Union and, under the CBA, Spring Break Louisiana recognized “the Union as
exclusive representative of the employees in the bargaining unit.” Considering
that Appellants, who were members of the Union, received and accepted full
payment for their FLSA claims under the Settlement Agreement, the fact that
Appellants did not themselves personally sign the Settlement Agreement does
not render it unenforceable.6 See N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S.
175, 180 (1967) (“The employee may disagree with many of the union decisions
but is bound by them.”).7
       Appellants argue with more elaboration that even if they released their
rights to pursue their FLSA claims in the Settlement Agreement, that release
is invalid because individuals may not privately settle FLSA claims. The district
court, noting that this court has no binding precedent that resolves whether
parties may privately settle a FLSA claim involving a bona fide dispute over
whether the plaintiffs worked on days for which they seek unpaid wages,


       6
          We have recognized that Unions have discretion regarding employee-member
grievances and may negotiate settlements of employee-member grievances. Freeman v. O’Neal
Steel, Inc., 609 F.2d 1123, 1126 (5th Cir. 1980). In its role as the exclusive agent for all
employees in the bargaining unit, a union “‘has the power to sift out frivolous grievances, to
abandon processing of a grievance which it determines in good faith to be meritless, and to
settle disputes with the employer short of arbitration.’” Id. (quoting Harris v. Chem. Leaman
Tank Lines, Inc., 437 F.2d 167, 171 (5th Cir. 1971)).
       7
         Appellants also contend that, because the Settlement Agreement was signed in
November 2009, after Appellants removed this lawsuit to federal court on August 21, 2009,
and the Settlement Agreement contains no explicit release of employees’ individual claims,
such individual claims are not extinguished by the Settlement Agreement. However, the
Settlement Agreement specifically states that although “disputes remain between the parties
as to the amounts that may be due,” “the Union has agreed on its own account and as the
authorized collective bargaining representative on behalf of the IATSE Employees to accept
those amounts as provided herein” and that the “parties now desire to settle the dispute
between them on the terms and conditions set forth herein.” (emphasis added).

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                                      No. 11-30671
adopted the holding and logic of Martinez v. Bohls Bearing Equip. Co., 361 F.
Supp. 2d 608 (W.D. Tex. 2005), that “a private compromise of claims under the
FLSA is permissible where there exists a bona fide dispute as to liability.” Id. at
634.
       In Martinez, the plaintiff alleged that his employer owed him more than
$3,000 in unpaid overtime, while the employer believed the plaintiff was only
owed approximately $500 based on an analysis of the time cards. 361 F. Supp.
2d at 612, 631–32. The court in Martinez held that the plaintiff’s acceptance of
a check for $1,000 for settlement of all overtime claims at issue was a valid
release of the plaintiff’s FLSA rights and was enforceable in the litigation that
followed the settlement. Id. at 631–32. In reaching this conclusion, the court in
Maritnez noted, “parties may reach private compromises as to FLSA claims
where there is a bona fide dispute as to the amount of hours worked or
compensation due. A release of a party’s rights under the FLSA is enforceable
under such circumstances.” Id. at 631.8 Similarly, here, there is a bona fide
dispute between Appellants and Spring Break Louisiana over the number of
hours for which they are owed their set rate of pay.                  In fact, the Union
representative conducted an investigation into the dispute and received
conflicting information from various sources, ultimately concluding that it would
be impossible to determine whether or not Appellants worked on the days they
claimed they had worked in their grievance.9 Approving of this rationale, we
hold that the payment offered to and accepted by Appellants, pursuant to the
Settlement Agreement, is an enforceable resolution of those FLSA claims


       8
         In reaching its conclusion, the court in Martinez analyzed the history of the FLSA,
its amendments, and caselaw and noted, “recent court decisions have held that FLSA claims
subject to an arbitral decision are enforceable. Likewise, claims as to other statutory labor
rights have generally been held waivable.” Id. at 629–30 (internal citations omitted).
       9
        In his deposition, the Union representative explained that other crew members
disputed that Appellants had worked the hours they claimed to have worked.

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                                        No. 11-30671
predicated on a bona fide dispute about time worked and not as a compromise
of guaranteed FLSA substantive rights themselves. See Brooklyn Sav. Bank v.
O’Neil, 324 U.S. 697, 714 (1945) (“Our decision . . . has not necessitated a
determination of what limitation, if any, Section 16(b) of the [FLSA] places on
the validity of agreements between an employer and employee to settle claims
arising under the Act if the settlement is made as the result of a bona fide
dispute between the two parties, in consideration of a bona fide compromise and
settlement.”); see also D. A. Schulte, Inc. v. Gangi, 328 U.S. 108, 114–15 (1946)
(“Nor do we need to consider here the possibility of compromises in other
situation which may arise, such as a dispute over the number of hours worked
or the regular rate of employment.”); 29 U.S.C. § 253(a).
       Notably, in Thomas v. Louisiana, 534 F.2d 613 (5th Cir. 1976), we held
that a private settlement of FLSA claims was binding and enforceable where the
settlement gave employees “everything to which they are entitled under the
FLSA at the time the agreement is reached.” Id. at 615. We explained that,
“[a]lthough no court ever approved this settlement agreement, the same reason
for enforcing a court-approved agreement i.e., little danger of employees being
disadvantaged by unequal bargaining power[,] applies here.” Id.10 Here, Spring

       10
          Appellants cite two decisions from other circuits, Taylor v. Progress Energy, Inc., 415
F.3d 364 (4th Cir. 2005), and Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350 (11th
Cir. 1982), to support their contention that FLSA claims may only be settled by court approval
or by the Department of Labor. We do not find the Fourth Circuit’s decision in Taylor
applicable because the holding of Taylor dealt with settlement of Family and Medical Leave
Act claims, and even in that context has been superceded, as recognized by the Fourth Circuit
itself. See Whiting v. The Johns Hopkins Hospital, 416 F. App’x 312, 314–16 (4th Cir. 2011)
(per curiam); Taylor, 415 F.3d at 374–75; cf. Faris v. Williams WPC-I, Inc., 332 F.3d 316, 321
(5th Cir. 2003) (interpreting specific FMLA statutory and regulatory language to uphold a
release of prospective FMLA claims). In Lynn’s Food Stores, the Eleventh Circuit, the only
court of appeals that has ruled on this issue, held thirty years ago that FLSA claims may not
be settled without the approval of the Department of Labor or the courts. 679 F.2d at 1355.
However, the dispute in Lynn’s Food Stores had arisen as a result of a Department of Labor
investigation and “the employees seemed unaware that the Department of Labor had
determined that Lynn’s owed them back wages under the FLSA, or that they had any rights
at all under the statute. There is no evidence that any of the employees consulted an attorney

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                                       No. 11-30671
Break Louisiana and the Union agreed in the Settlement Agreement that the
payments Appellants were paid pursuant to that agreement were the “amounts
due and owing” for the disputed number of hours they claimed they had worked
and not been paid for. The Settlement Agreement was a way to resolve a bona
fide dispute as to the number of hours worked—not the rate at which Appellants
would be paid for those hours—and though Appellants contend they are yet not
satisfied, they received agreed-upon compensation for the disputed number of
hours worked.11
       Finally, Appellants contend, citing Barrentine v. Arkansas-Best Freight
Sys., 450 U.S. 728, 745 (1981),12 that because the Supreme Court has held that
a union cannot waive employees’ rights under the FLSA through a collective
bargaining agreement, they cannot have settled their FLSA claims in the


before signing the agreements. Some of the employees who signed the agreement could not
speak English.” 679 F.2d at 1353–54. The court in Lynn’s Food Stores explained in that
context that, “to approve an ‘agreement’ between an employer and employees outside of the
adversarial context of a lawsuit brought by the employees would be in clear derogation of the
letter and spirit of the FLSA.” Id. at 1354. Here, by contrast, Appellants were already
benefitting from legal counsel before the Settlement Agreement was signed in November 2009.
In fact, Appellants knew about their rights under the FLSA and had retained attorneys at
least by July 9, 2009, the date that Appellants’ attorneys signed their first amended complaint,
filed with the Superior Court of California for the County of Los Angeles, for, among other
things, “overtime under the FLSA.” The money Appellants received and accepted, pursuant
to the Settlement Agreement, for settlement of their bona fide dispute did not occur outside
the context of a lawsuit, hence the concerns that the Eleventh Circuit expressed in Lynn’s
Food Stores are not implicated.
       11
          The Settlement Agreement acknowledged the continued disagreement between the
parties over the number of hours Appellants had worked: “Producer does not dispute that
payments are due to the IATSE Employees . . . although disputes remain between the parties
as to the amounts that may be due.”
       12
          In Barrentine, the plaintiff truck drivers were required to conduct safety inspections
of their trucks before any trips and to transport a truck which failed an inspection to the
employer’s onsite repair facility, all without compensation. 450 U.S. at 730. Pursuant to their
collective bargaining agreement, the plaintiff truck drivers filed grievances against their
employer for the unpaid time, alleging that the collective bargaining agreement entitled them
to pay for that time. Id. at 730–31. The grievance was presented to a grievance committee for
a final and binding decision and was rejected without explanation. Id. at 731.

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                                      No. 11-30671
Settlement Agreement, which was arrived at through the Union-facilitated
grievance procedure laid out in the CBA. See Barrentine, 450 U.S. at 745 (“FLSA
rights . . . are independent of the collective-bargaining process. They devolve on
petitioners as individual workers, not as members of a collective organization.
They are not waivable.”). Although the terms and conditions of Appellants’
employment with Spring Break Louisiana were covered by a collective
bargaining agreement, Barrentine is distinguishable.                 In Barrentine, the
plaintiffs’ grievances based on rights under the FLSA were submitted by the
union to a joint grievance committee that rejected them without explanation, a
final and binding decision pursuant to the collective bargaining agreement.13 450
U.S.    at   731.      Here,     Appellants       accepted    and    cashed     settlement
payments—Appellants’ FLSA rights were adhered to and addressed through the
Settlement Agreement, not waived or bargained away. The concerns the Court
in Barrentine expressed, that FLSA substantive rights would be bargained away,
see id. at 740 (“This Court’s decisions interpreting the FLSA have frequently
emphasized the nonwaivable nature of an individual employee’s right to a
minimum wage and to overtime pay under the Act. Thus, we have held that
FLSA rights cannot be abridged by contract or otherwise waived because this
would ‘nullify the purposes’ of the statute and thwart the legislative policies it
was designed to effectuate.”), are not implicated by the situation here where
Appellants’ Union did not waive FLSA claims, but instead Appellants, with
counsel, personally received and accepted compensation for the disputed hours.
We reinterate that FLSA substantive rights may not be waived in the collective



       13
          The Court’s analysis in Barrentine acknowledges the fact that the plaintiffs’
grievances were unsuccessful. 450 U.S. at 729–30 (“The issue in this case is whether an
employee may bring an action in federal district court, alleging a violation of the minimum
wage provisions of the Fair Labor Standards Act . . . after having unsuccessfully submitted a
wage claim based on the same underlying facts to a joint grievance committee pursuant to the
provisions of his union’s collective-bargaining agreement.”).

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                                 No. 11-30671
bargaining process, however, here, FLSA rights were not waived, but instead,
validated through a settlement of a bona fide dispute, which Appellants accepted
and were compensated for. Therefore, the district court did not err by finding
an enforceable release resolving this wage dispute.
                               CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment in favor of Appellees Spring Break Louisiana, Callahan,
Hermansen, Bours, and Chortkoff.




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