United States District Court, D. South Carolina, Charleston Division
James Regan and Mason Underwood, on behalf of themselves and all other similarly situated, Plaintiffs,
City of Hanahan, Defendant.
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on the City of Hanahan's
partial motion to dismiss Plaintiffs second amended complaint
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
(Dkt. No. 39.) For the reasons set forth below, the Court
denies the motion.
James Regan and Mason Underwood seek to bring a collective
action under 29 U.S.C. § 216(b) to recover for wages,
including overtime premiums, they allege they were not paid
in accordance with the Fair Labor Standards Act of 1938, as
amended, 29 U.S.C. § 201, et seq. ("FLSA").
Plaintiffs also seek recovery under the South Carolina
Payment of Wages Act, S.C Code Ann. § 41-10-10, et. seq.
("SCPWA"), which they assert qualifies to be
treated as a class action under Rule 23 of the Federal Rules
of Civil Procedure. Plaintiff Regan also claims that the City
retaliated against him personally for complaints he made that
are protected under the FLSA. The City has moved to dismiss
only Plaintiffs' third cause of action for damages under
their third cause of action, Plaintiffs allege that the City
is liable to them for violations of the SCPWA, explaining
Defendant owes Plaintiff and the members of the Plaintiff
class "wages" as defined in § 41-10-10(2) of
the [SCPWA], to compensate them for labor rendered to
Defendant, as promised to Plaintiff and the members of the
Plaintiff class and as required by law.
During Plaintiffs' employment in Defendant's Fire
Department, Defendant promulgated and distributed various
Policies and Procedures . . . [which] contains the following
provisions regarding Defendant's wage and hour practices
for Fire Department employees:
a. that "Federal law on overtime shall be
b. that "if [an] employee's sleeping period or meal
time is interrupted by a call to duty, the interruption is
counted as hours worked";
c. that "Employees working overtime shall be compensated
by either overtime pay or the use of compensatory time.
Overtime pay and compensatory time shell be given at a rate
of time and one-half for all hours of overtime worked";
d. that "The Employee may determine whether to accept
overtime pay or compensatory time."
Defendant knowingly allowed Plaintiffs to "work off the
clock" and failed to pay Plaintiffs for all labor
rendered to Defendant.
Defendant has failed to pay Plaintiffs all wages due, as
required by ...