Judge rejects expansion of suit against MBNA Jury trial to focus on alleged overtime violations

BELFAST – A judge has rejected an attempt to expand an overtime violations lawsuit against MBNA America to include all current and former employees.

A lengthy civil trial looms for four current or former MBNA employees now that Superior Court Justice Francis Marsano has rejected their request for an immediate decision in their dispute with the credit card lender.

MBNA manages in excess of $80 billion in accounts and has more than 4,000 employees in Maine.

While rejecting a motion to expand the case into a class-action lawsuit, the judge ruled that a six-year statute of limitations applies, which could allow other MBNA employees or former employees going back six years to join in.

The four people have accused MBNA of violating Maine wage law by failing to pay them for all hours worked. In their suit, the four contend that special bonuses should have been added to their regular pay when calculating overtime. The company considers many of its bonus programs as separate from an employee’s hourly pay rate.

An MBNA spokesman has said the company usually refrains from commenting on current court cases, but said last year that the lawsuit does not “fairly characterize” MBNA and that the allegations are “absurd.”

Attempts to reach Timothy O’Brien, the Portland lawyer representing the employees, to determine whether an appeal would be sought, were unsuccessful.

In his decision Aug. 3, Marsano declined to make what is called a summary judgment, which means that the employees will have to present their case at a jury trial. A Waldo County Superior Court clerk said Thursday it is unlikely such a trial could be scheduled until next year.

The clerk also noted that the complexity of the case would likely mean that it would take a number of days to hear all the evidence and testimony. The file in the case is already 3 feet deep.

If the case comes to trial, it will be handled by two high-profile law firms from Portland: Verrill and Dana represents the employees and Pierce Atwood represents MBNA.

In his ruling, Marsano did not dispute the employees’ accusations. He said there appears to be evidence that some MBNA supervisors failed to credit their working groups for time spent at training sessions given during so-called “brown bag lunches.”

Though company policy required that all “non-discretionary” bonuses be added to the “regular rate” when calculating overtime, some managers “may or may not have” complied with that policy, Marsano noted.

Marsano also found that some employees “did not bother” to keep track of their overtime. He also noted that some “brown bag lunches” were not work-related.

MBNA gives employees a wide range of bonuses, such as customer satisfaction bonuses, monthly incentive bonuses, special incentive bonuses, cash awards and shift differentials. Marsano noted “the court agrees that some bonuses must be included in an employee’s regular rate of pay when calculating overtime.”

And Marsano stressed that when the case comes to trial, “MBNA will have the burden of proof” to show that some of its bonuses should be excluded from overtime calculations.

In dismissing the claim for class action, Marsano noted that four legal standards must be met before a claim can include an entire class. In reviewing the testimony and evidence presented at earlier hearings and depositions, Marsano found that the claim did not meet one of the four standards.

He ruled that there were enough parties involved to meet the requirement; that there were questions of law that applied to all employees; and that they were adequately and fairly represented by their lawyers. He concluded, however, that the record failed to prove that the claims being made by the group were typical of the entire class. He said the differences between the bonus systems, department managers and policies were so wide-ranging that “a class action would not be manageable here.”

Besides, he noted, the employees had other avenues to address their grievances.

He noted that the government labor officials had the authority to audit the company’s payroll records and could bring suit if discrepancies in wage payments were detected.

Marsano’s ruling can be appealed to the Maine Supreme Judicial Court.