White v. Publix Super Markets Inc.

Frequently Asked Questions

  1. What Is This Case About?
  2. Did the Court find that Publix did something wrong?
  3. Who is in the collective action?
  4. What is a collective action?
  5. I haven’t received a Notice/Consent to Join Form, will you send me one?
  6. Why wasn’t I sent a consent form before? I didn’t know about the case until now.
  7. What address did you send my consent form to?
  8. What do I have to do to receive a payment?
  9. When will I know my settlement amount?
  10. What happens to unclaimed money?
  11. What is the total amount of the settlement? How does that compare to what we could win at trial?
  12. How was my settlement amount calculated?
  13. How many people are included in this case?
  14. Will I owe taxes on my award?
  15. Will I owe attorney fees from my award?
  16. What am I giving up if I accept this settlement?
  17. What if I don’t cash the check?
  18. What happens if I withdraw?
  19. How do I withdraw?
  20. My [husband/wife/parent/child] was a member of this class, but passed away. Can I recover for him/her?
  21. How do I get a copy of the Settlement Agreement?
  22. Will Publix know if I accept money from the settlement?
  23. Can Publix fire me/retaliate against me for participating?
  24. Who are the lawyers representing the Plaintiffs?
  25. Has the Court approved the settlement?
  1. What Is This Case About?

    This case is a lawsuit against Publix Super Markets.  The case was only about whether Publix under-calculated the overtime amount that it paid to you for your recorded overtime hours worked, by paying you full overtime pay based on your hourly rate, but failing to calculate the additional amount of overtime pay that allegedly should also have been paid resulting from receiving certain additional bonus or incentive payments other than your hourly rate.  This case was never about whether there were overtime hours worked that were not recorded and paid, and was only about whether the rate for overtime payment on the overtime hours paid was calculated correctly.

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  2. Did the Court find that Publix did something wrong?

    Plaintiffs, who are or were employed by Publix, brought this Lawsuit claiming that certain payments were improperly excluded from the regular rate in calculating overtime pay for current and former Hourly Associates, which Plaintiffs allege resulted in you being paid full overtime pay based on your hourly rate for your overtime hours recorded, but not being paid overtime pay based on certain additional bonus or incentive payments other than your hourly rate for those overtime hours.  The payments at issue in the case are Holiday Benefit; Retail Bonus; Holiday Bonus; tuition reimbursement; Prevention Plus prizes; and WIN and Change It awards.  On August 19, 2015, the Court ruled that Publix should have included the lump sum 8 hour Holiday Benefit payments in calculating the overtime rate paid for any overtime in a week that included the Holiday Benefit days, and entered judgment for Plaintiffs against Publix on this claim. The Court’s ruling means that while you were paid all of the required overtime pay for your recorded overtime hours worked based on your hourly rate, Publix should have also paid an additional amount of overtime based on the amount of Holiday Benefit pay you received for a week in which you worked recorded overtime hours that included the shift before, on, or after the holiday for which the lump sum 8 hours of Holiday Benefit was paid. The Court also ruled that Retail Bonus; Holiday Bonus; tuition reimbursement; Prevention Plus prizes; and WIN and Change It awards were properly excluded from the overtime calculation, and entered judgment for Publix on these claims.  It is Plaintiffs’ position that, notwithstanding the Court’s ruling, their claims as to those payments have merit.  Publix, for its part, has denied and continues to deny any wrongdoing and denies any and all liability and damages in the Lawsuit.  Nonetheless, to avoid the burden, expense, inconvenience and uncertainty of continued litigation, including potential appeals, Plaintiffs and Publix have concluded that it is in each of their best interests to settle the Lawsuit.

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  3. Who is in the collective action?

    In order to be a member of the collective action being offered a settlement payment, you must have filed a valid and timely Consent Form in response to the Notice previously issued in this case.  In addition, at any time between May 16, 2011 and December 27, 2014, you must have worked over 40 hours as an Hourly Associate in a retail location in a workweek that included any one of the days (the day before, the day of, or the day after) to which the attendance requirements of Publix’s Holiday Pay policy at that time applied and for which you received Holiday Pay.  

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  4. What is a collective action?

    In a “Collective Action,” one or more people called “Named Plaintiffs” sue on behalf of people who have similar claims. However, other employees who have similar claims do not become part of the Collective Action until they “opt in” to the Collective Action. You received the notice of settlement because you previously “opted in” to this Collective Action.

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  5. I haven’t received a Notice/Consent to Join Form, will you send me one?

    No. If you did not submit a consent to join form in response to the original notice providing you the opportunity to do so, it is too late to join the case now.

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  6. Why wasn’t I sent a consent form before? I didn’t know about the case until now.

    Notices were mailed in December 2015 to all hourly workers who had worked overtime in a week during which they received a Holiday Benefit payment.  The Court set a deadline to file Consents to join this case. Plaintiff and Publix then reached a settlement concluding this litigation as to the eligible employees who filed Consents to join this case. It is too late to file a Consent Form at this point.  

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  7. What address did you send my consent form to?

    We were not the administrator of the notice process, and we did not issue the mailings.  Regardless, it is too late to file a Consent Form at this point.  

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  8. What do I have to do to receive a payment?

    You do not need to do anything in order for your payment to be mailed to you.  It is your responsibility, however, to let us know if your address changes.  If you move and we are unable to locate you, you may forfeit any monetary award to which you may otherwise be entitled.

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  9. When will I know my settlement amount?

    You will know when you receive your Notice and check.   No one will be paid less than $5.00 (pre-tax), and most people will receive more.

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  10. What happens to unclaimed money?

    Settlement funds that remain unclaimed after 120 calendar days of mailing of the settlement checks will be retained by Publix.

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  11. What is the total amount of the settlement? How does that compare to what we could win at trial?

    The total settlement amount to be distributed to the Collective Action members is $225,000.  The 7,815 Plaintiffs had actual total unpaid overtime wages on the Holiday Benefit claim that ranged between a low of $.01 and a high of $305 each, at an average of less than $20 per person, for a maximum possible total of approximately $98,500.00 collectively if (and only if) Plaintiffs could also carry their burden of proving at trial that the alleged overtime pay violation was “willful” – if not, that amount would total only approximately $65,666.67. The $225,000.00 Settlement Amount constitutes an offer to receive more than 230% of the maximum possible unpaid overtime wages allegedly owed on Holiday Benefit payments received if Plaintiffs proved a willful violation at trial, and approximately 340% of the maximum possible unpaid overtime wages allegedly owed on Holiday Benefit payments received if Plaintiffs did not prove a willful violation and the recovery period was therefore limited to only two years. You are receiving an offer of more than 100% of the maximum amount you could have recovered on your unpaid overtime claims related to Holiday Benefit pay claims even if Plaintiffs proved a willful violation and obtained full liquidated damages at trial, which offers you additional compensation for the other alleged claims being released herein that the Court rejected in ruling for Publix on those claims.

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  12. How was my settlement amount calculated?

    Your individual settlement payment amount was calculated based on your individual unpaid overtime premium amount related to the Holiday Benefit pay you received for overtime weeks, as a pro rata percentage of all unpaid overtime premiums related to the Holiday Benefit pay for all Plaintiffs, as adjusted for minimum payment amounts. Because you were already paid all overtime premiums for recorded hours worked over 40 in a workweek at time-and-a-half your hourly rate of pay, and because the lump sum 8 hour Holiday Benefit pay amounts at issue in the Litigation were paid for all of your hours worked in the week or weeks that included your shifts before, on, and after the applicable Publix-paid holiday (both regular and overtime hours), the only additional overtime pay at issue in the Litigation was the additional overtime premium allegedly owed for any overtime hours in those particular weeks based only on the Holiday Benefit pay amount received. As an example, if you did not work any overtime hours in the week that related to the then-applicable requirement to work 50% of your scheduled shifts before, on, or after the Publix-paid holiday, you were not underpaid any overtime pay due to receiving Holiday Benefit for that week. If, however, you worked 1 hour of overtime during that week, and received 8 hours of Holiday Benefit pay (for example, totaling $80) for that week, you received overtime pay based on your hourly rate for that 1 hour of overtime worked, and the total amount of additional one-half overtime premiums allegedly unpaid for that Holiday Benefit payment under the claim on which Plaintiffs prevailed in this Litigation was approximately less than $1 for that week.  

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  13. How many people are included in this case?

    Approximately 7,815 people are included as Collective Action Members.

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  14. Will I owe taxes on my award?

    Your settlement payment is separated into two equal amounts: fifty percent (50%) shall be allocated to the claims asserted in the lawsuit for overtime wages, and fifty percent (50%) shall be allocated to the claims asserted in the lawsuit for liquidated damages.  The portion allocated to claims for unpaid overtime and other wage-related damages will be subject to all required employee- and employer-paid payroll taxes and deductions (e.g., federal income taxes, state income taxes, FICA taxes).  The portion allocated to liquidated damage and other relief shall be characterized as non-wage income to the recipient.

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  15. Will I owe attorney fees from my award?

    No.  Attorney’s fees and costs are being paid separately from the total amount available to settlement members.  The Court approved payment by Publix of approximately half of the total amount of Plaintiff’s counsel’s actual legal fees.  Plaintiff’s counsel will not seek to recover the remainder of their fees.

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  16. What am I giving up if I accept this settlement?

    If you accept the payment, then you agree to release Publix from the claims litigated in this case by accepting the following:

    You forever and fully release Publix, its owners, stockholders, predecessors, successors, assigns, agents, directors, officers, employees, representatives, attorneys, parent companies, divisions, subsidiaries, affiliates, benefit plans, plan fiduciaries and/or administrators, and all persons acting by, through, under or in concert with any of them, including any party that was or could have been named as a defendant in the Lawsuit (collectively, the “Releasees”) from any and all past and present matters, claims, demands, causes of action, and appeals of any kind, whatsoever, whether at common law, pursuant to statute, ordinance, or regulation, in equity or otherwise, and whether arising under federal, state, local, or other applicable law, which you have or might have, known or unknown, of any kind whatsoever, expressly limited to only those that are allowed by law for claims brought in the Lawsuit that arise from or specifically relate to the alleged failure to include (1) “Holiday Benefit” payments, (2) “Retail Bonus” payments, (3) “Holiday Bonus” payments, (4) tuition reimbursement payments, (5) “Prevention Plus” prizes, and (6) “WIN” or “Change It” awards as addressed by the Court’s summary judgment rulings in the Lawsuit in the regular rate of pay for purposes of calculating overtime pay during pay periods worked as an hourly paid associate in a retail store location (which includes all Publix retail stores, but does not include any other Publix employment locations such as headquarters, distribution facilities, or manufacturing facilities) up to and including the date of approval of this settlement (“Released Claims”).  The Released Claims are expressly limited to only those claims asserted in the Lawsuit and any other claims that could have been brought that arise from or relate specifically to the alleged failure to include (1) “Holiday Benefit” payments (2) “Retail Bonus” payments, (3) “Holiday Bonus” payments, (4) tuition reimbursement payments, (5) “Prevention Plus” prizes, and (6) “WIN” or “Change It” awards as addressed by the Court’s summary judgment rulings in the Lawsuit in the regular rate of pay for purposes of calculating overtime pay during pay periods worked as an hourly paid associate in a retail location, including, without limitation, claims under the Fair Labor Standards Act and the statutes, laws, and regulations of all states.  The only claims released by you are the Released Claims, and the assertion or settlement and dismissal of Released Claims in this Lawsuit shall have no claim preclusion effect on any claims other than Released Claims.  This Agreement does not cover, limit, or in any way involve Publix’s discretion with respect to its 401(k) plan and Employee Stock Ownership Plan obligations consistent with the terms of those plans.

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  17. What if I don’t cash the check?

    If you do not deposit your check, and you also do not withdraw from the settlement, then you will still release Holiday Benefit claims, but not other claims.  You will release:

    You forever and fully release Publix, its owners, stockholders, predecessors, successors, assigns, agents, directors, officers, employees, representatives, attorneys, parent companies, divisions, subsidiaries, affiliates, benefit plans, plan fiduciaries and/or administrators, and all persons acting by, through, under or in concert with any of them, including any party that was or could have been named as a defendant in the Lawsuit (collectively, the “Releasees”) from any and all past and present matters, claims, demands, causes of action, and appeals of any kind, whatsoever, whether at common law, pursuant to statute, ordinance, or regulation, in equity or otherwise, and whether arising under federal, state, local, or other applicable law, which you have or might have, known or unknown, of any kind whatsoever, expressly limited to those that arise from or specifically relate to the alleged failure to include Holiday Benefit payments as addressed by the Court’s summary judgment rulings in the Lawsuit in the regular rate of pay for purposes of calculating overtime pay during pay periods worked as an hourly paid associate in a retail store location (which includes all Publix retail stores, but does not include any other Publix employment locations such as headquarters, distribution facilities, or manufacturing facilities) up to and including the date of approval of this settlement (“Released Holiday Benefit Claim”).  The Released Holiday Benefit Claim is expressly limited to the Holiday Benefit claim asserted in the Lawsuit and any other claims that could have been brought that arise from or specifically relate to the alleged failure to include Holiday Benefit payments as addressed by the Court’s summary judgment rulings in the Lawsuit in the regular rate of pay for purposes of calculating overtime pay during pay periods worked as an hourly paid associate in a retail store location, including, without limitation, claims under the Fair Labor Standards Act and the statutes, laws, and regulations of all states.  The only claim released by you under this subparagraph is the Released Holiday Benefit Claim, and the assertion or settlement of Released Holiday Benefit Claim in this Lawsuit shall have no claim preclusion effect on any claims other than the Released Holiday Benefit Claim.  This Agreement does not cover, limit, or in any way involve Defendant’s discretion with respect to its 401(k) plan and Employee Stock Ownership Plan obligations consistent with the terms of those plans.

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  18. What happens if I withdraw?

    If you submit a withdrawal form on time and do not cash the check, then you will release no claims, and you will receive no payment.  You may seek to pursue your claims with your own counsel, but the time during which you will be able to do so may be very short, and you may have lost some or all of your right to pursue the claims listed above due to the running of the statute of limitations.

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  19. How do I withdraw?

    If you want to withdraw, complete the withdrawal form found here and return it to us.  You can either email a copy of the form to whitepublixsettlement@kccllc.com or mail a paper copy of the form to White v. Publix Super Markets, Inc., c/o KCC Class Action Services, P.O. Box 404002 Louisville, KY 40233-4002.  Your Withdrawal Form will not be effective if you also cash your check.  If you cash the check, you will be bound by the settlement even if you also submit a withdrawal form.

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  20. My [husband/wife/parent/child] was a member of this class, but passed away. Can I recover for him/her?

    Checks can only be made out to the Collective Action Member, or if they are deceased, to their Estate.  If you wish us to issue a check to an eligible deceased Collective Action Member, you will need to provide us with a copy of the Death Certificate and confirmation of the representative of the estate.  If we receive a Death Certificate, the check will be issued to the “Estate of” the deceased Collective Action Member.   

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  21. How do I get a copy of the Settlement Agreement?

    You can download a copy of the full Settlement Agreement here. 

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  22. Will Publix know if I accept money from the settlement?

    Publix’s store-level management will not have any knowledge of whether you accepted money from the settlement unless you disclose that fact to them.  In any event, retaliation for participating in a settlement of this type is prohibited by law.  

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  23. Can Publix fire me/retaliate against me for participating?

    No. Retaliation for participating in a settlement of this type is prohibited by law.

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  24. Who are the lawyers representing the Plaintiffs?

    Christine Webber

    COHEN MILSTEIN SELLERS & TOLL PLLC

    1100 New York Ave, NW,

    Suite 500

    Washington, DC 20005

    Telephone: (202) 408-4600

    Facsimile: (202) 408-4699

    Email: pmacker@cohenmilstein.com

    C. Andrew Head

    Head Law Firm, LLC

    Suite 305

    1170 Howell Mill RD., NW

    Atlanta, GA 30318

    Telephone: (404) 924-4151 ext. 105

    Facsimile: (404) 796-7338

    Email: publixlawsuit@headlawfirm.com

    David Hughes

    HARDIN & HUGHES, LLP

    2121 14th Street

    Tuscaloosa, AL 35401

    Telephone: (205) 523-0463

    Facsimile: (205) 344-6188

    Email: publixlawsuit@hardinhughes.com

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  25. Has the Court approved the settlement?

    Yes.  The U.S. District Court for the Middle District of Tennessee reviewed and approved the settlement agreement.

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