Workers who are shorted on overtime claims often have a choice to make as to whether to opt in or out of a class or collective action settlement.  Whether they join the suit or pursue their own claims can have significant consequences, as a recent case demonstrates.  A federal judge in Missouri has dismissed a proposed class action brought by a former flight paramedic who claimed Air Evac EMS Inc. shorted him on overtime.  The court held that the worker was covered by a previous $2.95 million settlement in Kentucky. 

Air Evac is an air ambulance company providing air medical transport services by helicopter to critically ill or injured patients in medically underserved rural areas. Before July 2018, Air Evac paid its pilots, flight paramedics, flight nurses, and mechanics based in Illinois and West Virginia overtime premiums for every hour worked over 84 hours in a two-week pay period. After July 2018, Air Evac began paying these employees overtime premiums for every hour worked over 40 hours in a workweek.

In April 2019, Buchta filed this class action against Air Evac, an air ambulance company that provides air medical transport services to rural areas, alleging Air Evac failed to pay pilots, mechanics, flight nurses, and flight paramedics overtime pay in Illinois, Indiana, and West Virginia. Buchta began his employment as a flight paramedic with Air Evac in June 2013. He voluntarily resigned in March 2020. From June 2013 until June 2015, Buchta worked at a base in Indiana. From June 2015 until October 2016, Buchta worked in Kentucky, and from October 2016 until June 2017, he worked in Missouri. Since July 2017 until his resignation, he worked in Illinois. Buchta never worked in West Virginia.

In 2018, Jason Peck filed a lawsuit against Air Evac in the Fayette Circuit Court, Commonwealth of Kentucky, alleging Air Evac did not pay pilots, flight paramedics, and flight nurses overtime in accordance with Kentucky wage laws. Air Evac removed the lawsuit to federal court. In April 2019, Peck, on behalf of himself and on behalf of a class of similarly situated individuals, and Air Evac executed a settlement agreement.

In April 2019, Peck filed a motion for class certification and preliminary approval of class action settlement. On the same day, after Peck filed his motion, Buchta filed this lawsuit on behalf of himself and others similarly situated alleging violations of Illinois, Indiana, and West Virginia wage laws. The same counsel represents Peck and Buchta. In Peck’s case, the court granted his motion for preliminary approval and notice packets were mailed to class members. These packets included a Notice of Class Action Settlement. The settlement administrator also set up a website that included all of the documents sent in the notice packet. To opt out of the settlement, class members had to send an opt-out statement to the settlement administrator. Buchta is a member of that settlement class and did not opt out of the settlement. He is on the list of persons to receive a check from the settlement administrator.

In January 2020, the court in Peck’s case held a final hearing and issued its memorandum opinion and order approving the settlement agreement and its final judgment. In February, Peck filed an emergency motion for interpretation of the settlement agreement asking the court to find that the agreement applied only to Kentucky laws and would not prevent Buchta from pursuing this case. The court held a hearing and denied the motion, finding it lacked jurisdiction to resolve the dispute. Air Evac paid the full amount of the settlement in Peck’s case.

In the Buchta case, two members of the proposed class attempted to intervene in case the court dismissed Buchta’s claims.  The Court denied these motions to intervene, finding all four of the Rule 24 intervention factors to weigh against allowing these claimants to intervene.  The Court then dismissed Buchta’s claims, finding that the Peck release covered the claims asserted by Buchta in the suit. The Peck settlement agreement includes the following release:

In exchange for the consideration provided herein, the Settlement Class Members, including Named Plaintiff, hereby release any and all claims they have or may have against the Released Parties arising out of or relating to the manner in which they were compensated by the Released Parties up to the date they sign the Agreement. They also agree to release the Released Parties from any and all claims they have or may have against the Released Parties arising out of or relating to any (1) failure to pay overtime; (2) failure to pay wages; (3) unjust enrichment; (4) Kentucky revised Statutes; and/or (5) any claim that was or could have been asserted in the Action.  The Court held, “This language clearly encompasses Buchta’s claims. It covers any and all claims relating to the way Air Evac compensated a settlement class member, i.e. Buchta. His claims in this case all relate to the manner in which Air Evac paid him. Even if the allegations in the lawsuit itself only concerned claims under Kentucky law, the parties were free to negotiate, and the court was free to approve, a settlement agreement encompassing claims under the laws of other jurisdictions…Thus, Buchta released all claims related to his Air Evac compensation when he chose not to opt out of the class action settlement and to be bound by the settlement agreement.” Because Buchta is the sole class representative for each of the claims asserted in his Complaint, and his claims are barred, the Court held that he could not represent the class. Without a class representative, the Court cannot certify a putative class and its claims cannot survive. Id. Thus, the Court must, and does, dismiss the lawsuit in its entirety.

While the two intervenors could possibly file a new lawsuit seeking to assert the different state class actions proposed by Buchta, the statute of limitations on them has likely run for most of the class members, as the defendant began paying its workers correctly in July of 2018, more than two years ago, and the statute of limitations for most state wage claims is two or three years.  In hindsight, Buchta could and should have opted out of the Kentucky class action, which would have avoided the dismissal of his claims, and would have allowed him to pursue his proposed class action.  

About the author: Josh Borsellino is a Texas attorney who represents workers on overtime claims.  For a free consultation of your overtime matter, call Josh at 817.908.9861 or complete this form.