Tenth Circuit: Employer Who Failed to Properly Calculate Overtime Based in Part on Attorney’s Advice Still Wilfully Violated the FLSA

The Tenth Circuit Court of Appeal concluded that an oil field operator who had sought advice from an attorney about its overtime policies had still wilfully violated the statute when it relied in part on that advice.  In Mumby v. Pure Energy Services (USA), Inc., the Court ruled that “[a]lthough consultation with an attorney may help prove that an employer lacked wilfullnes, such a consultation is, by itself, insufficient to require a finding in favor of the employer.”  Instead, the Court said the inquiry focues on the employer’s diligence.  Although in this case, the oil field operator had received incorrect advice from the attorney with which it had complied, it had failed to adhere to the portion of the advice that was correct.  Accordingly, the employer was found to have wilfully violated the statute, subjecting it to one more year’s worth of back pay and liquidated damages.