Fall 2011] WILLFULNESS, GOOD FAITH, AND THE FLSA 117
comported with the Act.
39
This “reasonableness” requirement is objective, and
ignorance alone does not exonerate the employer.
40
Objective good faith can
exist when the employer has consulted with Department of Labor authorities
and relied on such expert opinion.
41
If the employer can demonstrate that it had
both a subjective belief that it was in compliance with the Act and it had an
objectively reasonable basis for its belief, then the court may apply the safe
harbor provision and limit or deny an award of liquidated damages.
42
However,
“[a]bsent . . . a showing [of both the subjective and objective elements of the
good faith defense], liquidated damages are mandatory.”
43
III. T
HE
C
IRCUIT
S
PLIT
The United States Circuit Courts of Appeals are split on the issue of
whether a jury’s finding of willfulness is wholly separate from and can co-exist
with a finding of good faith because the burdens of proof differ, or whether the
findings are so inherently inconsistent that a positive finding of willfulness pre-
cludes a subsequent finding of good faith by the court.
44
The Fifth, Sixth,
Ninth, Tenth, and Eleventh Circuits have adopted the Preclusion Majority
Approach, holding that two positive findings are inherently inconsistent and
cannot co-exist.
45
On the other hand, the Fourth and Eighth Circuit Courts have
adopted the Distinct Test Approach, holding that the different burdens of proof
allow for both findings to co-exist as they are irrelevant to each other.
46
The
incompatible holdings from the circuit split will be examined in turn.
39
Marshall v. Brunner, 668 F.2d 748, 753 (3d Cir. 1982); Chao v. Tyson Foods, Inc., 568
F. Supp. 2d 1300, 1322 (N.D. Ala. 2008).
40
Andrews v. DuBois, 888 F. Supp. 213, 221 (D. Mass. 1995).
41
See Elwell v. Univ. Hosps. Home Care Servs., 276 F.3d 832, 841 (6th Cir. 2002) (recog-
nizing the absence of good faith where the defendant did not rely on the expertise or opinion
of any other person or entity with knowledge of the FLSA regulations, including its attorney
or the Department of Labor); Samson v. Apollo Res., Inc., 242 F.3d 629, 640–41 (5th Cir.
2001) (suggesting good faith could be found where an employer relies on the expertise or
opinion of any other person or entity with knowledge of the FLSA regulations, including its
attorney or the Department of Labor).
42
See Stevenson v. Orlando’s Auto Specialists, Inc., No. 6:07-cv-500-Orl-19GJK, 2008
WL 4371830, at *4 (M.D. Fla. Sept. 23, 2008).
43
Dybach, 942 F.2d at 1566–67 (quoting EEOC v. First Citizens Bank of Billings, 758 F.2d
397, 403 (9th Cir. 1985); see also Hayes v. Bill Haley & His Comets, Inc., 274 F. Supp. 34,
37 (E.D. Pa. 1967).
44
See Davis v. Mountaire Farms, Inc., 598 F. Supp. 2d 582, 588 n.4 (D. Del. 2009); Wil-
liams v. R.W. Cannon, Inc., No. 08-60168-CIV, 2009 WL 655730, at *2 (S.D. Fla. Mar. 12,
2009).
45
See Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d 1150, 1166 (11th Cir.
2008) (Although the Eleventh Circuit in Alvarez has adopted the Preclusion Majority
Approach, its opinion in Rodriguez is the only FLSA authority that illustrates the Distinct
Test Approach. Such illustration, however, does not conflict with its holding in Alvarez as
there was no finding of both willfulness and good faith.); see also Brinkman v. Dep’t of
Corr., 21 F.3d 370, 372–73 (10th Cir. 1994); Chao v. A-One Med. Servs. Inc., 346 F.3d 908,
920 (9th Cir. 2003); Herman v. Palo Grp. Foster Home, Inc., 183 F.3d 468, 474 (6th Cir.
1999); Singer v. City of Waco, Tex., 324 F.3d 813, 822–23 (5th Cir. 2003).
46
See Rodriguez v. Farm Stores Grocery, Inc., 518 F.3d 1259, 1274 (11th Cir. 2008);
Broadus v. O.K. Indus., 226 F.3d 937, 944 (8th Cir. 2000); Fowler v. Land Mgmt. Groupe,
Inc., 978 F.2d 158, 162 (4th Cir. 1992).