-8-
sec. 216(b) (1994). These liquidated damages are intended to
compensate employees not for personal injury but for damages that
may be too obscure or difficult to estimate because of the delay
of wage payment. See Overnight Motor Transp. Co. v. Missel, 316
U.S. 572, 583-584 (1942).
Accordingly, if a claim arose solely under the FLSA,
petitioner would most likely fail to meet the test of
Commissioner v. Schleier, supra. However, petitioner argues
that, along with the FLSA claim, another claim existed–-the
intentional and/or negligent infliction of emotional distress.5
Petitioner contends that this, and not the FLSA claim, was the
claim upon which the lawsuit was settled.
Indisputably, no claims for personal injury were alleged in
the 1993 class action pleadings. Nevertheless, petitioner points
out that under Pipitone v. United States, 180 F.3d 859, 863 (7th
Cir. 1999), the absence of an allegation does not bar the
existence of a tort claim or the ability of the parties to settle
upon it.
We agree that claims need not be specifically enumerated to
be the basis of a settlement. Nonetheless, the payor must be
aware of that claim. Id. Practically speaking, the complaint is
5 Petitioner claims that she experienced “dry heaves” and
had to take prescription Tagamet to prevent an ulcer. She also
claims that her marriage suffered because of job-related stress.
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: May 25, 2011