A Fair Labor Standards Act (FLSA) suit brought by a former KFC assistant manager could not be dismissed, according to U.S. District Judge James D. Whittemore, because the KFC Corp. franchisee's offer to pay her unpaid overtime, after her suit was filed, did not provide full relief.

As an assistant manager in a Florida KFC, Klinger filed suit in July 2011, claiming she was misclassified as exempt from receiving overtime compensation. She claimed she regularly worked over 40 hours a week.

In August, Phil Mook Enterprises, DBA KFC, asked the court to dismiss the case after offering to reimburse Klinger for unpaid wages. The employer's tactic was to not admit fault, pay damages claimed and try to avoid paying attorney's fees.

In Klinger v. Phil Mook Enterprises, (Sept. 13, 2011), Judge Whittemore rejected the defendant's attempt to moot an FLSA overtime claim by Stephanie Klinger by tendering "full payment" and claiming that the Court should dismiss the case based upon lack of subject matter jurisdiction.

Judge Whittemore characterized Mook's offer of payment as an attempt to deprive Klinger of prevailing party status and all of the relief she sought, including "an enforceable judgment, attorney's fees, and costs."

Klinger's attorney Gregg Shavitz of Shavitz Law Group, PA, said Judge Whittemore's decision upheld the core provisions of the FLSA. Further, he noted, "Judge Whittemore's ruling reinforces both the express provisions and the intent of the FLSA by ensuring that employers who violate the law are held fully accountable, and that employees can continue to enforce their rights in the courts when necessary."

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