Anti‑Evasion of FLSA Overtime and Prevailing‑Party Status After Rule 68: Comprehensive Commentary on David Thompson v. Regions Security Services, Inc.

I. Introduction

This consolidated Eleventh Circuit decision in David Thompson v. Regions Security Services, Inc. (Nos. 24‑11998, 24‑14028, Nov. 21, 2025) sits at the intersection of federal wage‑and‑hour law and civil procedure. Although designated “Not for Publication,” it applies and develops binding earlier precedent and clarifies several practically important points:

  • Substantive FLSA rule: When an employer cuts an employee’s non‑overtime hourly rate during weeks of regular overtime and restores it when overtime ends, and the only justification is the length of the workweek, that is an unlawful “device” to evade the Fair Labor Standards Act (“FLSA”) overtime requirements under 29 C.F.R. § 778.327.
  • Rule 68 and appellate jurisdiction: A defendant who makes a Rule 68(c) offer resolving damages while expressly reserving the right to appeal a prior liability ruling may appeal that ruling; such a settlement does not moot the appeal.
  • Prevailing‑party status under FLSA: A plaintiff who accepts a Rule 68 offer of judgment after an adverse liability determination, leading to an enforceable judgment and Lynn’s Food fairness review, is a “prevailing party” entitled to fees and costs under 29 U.S.C. § 216(b).
  • Attorney’s fees and mediation costs: A fee award nearly 17 times the damages ($94,627.50 in fees on a $5,650.82 recovery) can be reasonable in an FLSA case; reasonable mediation costs are recoverable as part of “a reasonable attorney’s fee” under § 216(b).

The case is the second Eleventh Circuit opinion involving David Thompson and his former employer, Regions Security Services, Inc. In Thompson v. Regions Sec. Servs., Inc., 67 F.4th 1301 (11th Cir. 2023) (“Thompson I”), the court held that Thompson had plausibly alleged unlawful manipulation of his “regular rate” of pay to avoid overtime. The present decision applies that earlier legal framework on summary judgment and resolves a substantial attorney’s fee dispute.

II. Summary of the Opinion

The Eleventh Circuit, per curiam, holds:

  1. Jurisdiction and Mootness
    • The court has appellate jurisdiction even though Regions made, and Thompson accepted, a Rule 68(c) offer of judgment, because the offer expressly preserved Regions’ right to appeal the prior liability ruling.
    • The case is not moot: the settlement is not a final unconditional payment; Regions obtained a stay and deposited funds with the court; success on appeal would affect the judgment.
  2. FLSA Liability
    • Thompson I, 67 F.4th 1301, together with 29 C.F.R. § 778.327, governs and is law of the case.
    • Regions reduced Thompson’s hourly rate from $13.00 to $11.15 only during weeks when he worked at least 60 hours, then restored $13.00 once regular overtime ended.
    • Regions offered no evidence of any “factor other than the number of hours in his workweek” to justify the reduction.
    • Therefore, the rate reduction was an impermissible device to evade paying overtime at 1.5 times the true regular rate, and summary judgment for Thompson on liability was proper.
  3. Prevailing‑Party Status and Rule 68 Judgment
    • The Rule 68 judgment, entered after the liability ruling and awarding $5,650.82 (unpaid overtime plus liquidated damages), is an enforceable judgment with sufficient judicial imprimatur.
      • Lynn’s Food Stores.
    • Thompson is therefore a “prevailing party” entitled to attorney’s fees and costs under 29 U.S.C. § 216(b).
  4. Attorney’s Fees
    • The district court correctly applied the lodestar method, finding 242.15 hours reasonably expended at $375/$400 per hour, for a total of $94,627.50.
    • Regions’ generalized objections about “block billing,” vagueness, and volume were insufficient; the magistrate judge found the entries adequately detailed and not true block billing.
    • No across‑the‑board reduction was required based on “results obtained,” even though Thompson did not pursue a separate non‑overtime wage theory at the end; that theory shared a common core of facts with the successful overtime claim.
  5. Mediation Costs
    • Under § 216(b) and Evans v. Books‑A‑Million, reasonable mediation expenses may be awarded as part of a “reasonable attorney’s fee” if they are normally billed to clients.
    • The award of $858.75 in mediation costs was within the district court’s discretion.

Disposition: The judgment and fee award are affirmed in all respects.

III. Factual and Procedural Background

A. Employment and Pay Arrangement

  • Thompson worked as a security guard for Regions from 2015 to 2020.
  • Original arrangement (non‑overtime weeks):
    • Hourly wage: $13.00
    • Overtime rate: $19.50 (1.5 × $13.00)
    • Schedule: generally 40 hours or less per week.
  • “60‑hour” arrangement (2019–2020):
    • In 2019, Regions offered Thompson at least 60 hours per week.
    • But Regions reduced his hourly wage to $11.15, with an overtime rate of $16.73 (1.5 × $11.15).
    • This arrangement lasted from July 22, 2019 to July 5, 2020, during which Regions routinely scheduled about 20 overtime hours per week.
    • Once Regions stopped scheduling him for overtime in early July 2020, it restored his non‑overtime rate to $13.00 per hour.

Under the reduced‑rate scheme, the effective weekly pay for 60 hours hardly exceeded what Thompson would have earned at $13.00 for all 60 hours, thereby nearly nullifying any meaningful overtime premium.

B. The Lawsuit and First Appeal (Thompson I)

  • Thompson sued under the FLSA’s overtime provisions, 29 U.S.C. § 207(a)(1), alleging that Regions had “artificially” lowered his regular rate solely to minimize overtime pay.
  • The district court initially granted judgment on the pleadings for Regions.
  • In Thompson I, 67 F.4th 1301 (11th Cir. 2023), the Eleventh Circuit:
    • Held that Thompson plausibly alleged that the pay reduction was a “device” to avoid overtime, in violation of 29 C.F.R. § 778.327.
    • Emphasized that while employers may lower base pay prospectively, they may not do so for the sole reason that the employee will work longer hours.
    • Remanded for further proceedings, noting Regions might yet show a legitimate, non‑hours‑based justification for the rate reduction.

C. Proceedings on Remand: Summary Judgment and Rule 68

  • On remand, both parties moved for summary judgment.
    • The district court:
      • Granted Thompson summary judgment on liability (Regions had violated the FLSA),
      • Denied Thompson’s motion as to damages amount, and
      • Denied Regions’ motion entirely.
    • The district court concluded Regions produced no evidence that the wage reduction was based on legitimate factors other than the number of hours Thompson worked.
  • After the liability ruling, Regions made an offer of judgment under Rule 68(c):
    • Amount: $5,650.82 (unpaid overtime plus liquidated damages), “in full satisfaction of all wage claims and liquidated damages.”
    • Express reservation: the offer was “not an admission or confession of liability” and Regions “retains the right to appeal the Court’s determination of liability.”
    • The offer preserved Thompson’s right to seek attorney’s fees and costs under § 216(b).
  • Thompson accepted, and the district court:
    • Entered judgment for $5,650.82,
    • Reviewed the settlement for fairness and reasonableness under Lynn’s Food Stores, and found it fair, and
    • Retained jurisdiction to determine attorney’s fees and costs.
  • Regions secured a stay of execution by posting a supersedeas bond and appealed (No. 24‑11998).

D. Attorney’s Fees and Costs Proceedings

  • Thompson moved for attorney’s fees and non‑taxable costs under 29 U.S.C. § 216(b).
  • The district court referred the matter to a magistrate judge, who recommended:
    • That Thompson qualified as a prevailing party.
    • A lodestar fee of $94,627.50 for three attorneys (242.15 hours at $375–$400 per hour).
    • Recovery of $858.75 in mediation costs.
  • Regions objected on multiple grounds: lack of prevailing‑party status, excessiveness of fees, and non‑recoverability of mediation fees.
  • The district court overruled the objections and adopted the R&R in full.
  • Regions appealed the fee order (No. 24‑14028). The two appeals were consolidated.

IV. Appellate Jurisdiction and Rule 68 Offers Reserving Appeal Rights

A. General Rule and Exception

The court first addresses its own jurisdiction, noting the routine principle that “a party has no standing to appeal an order or judgment to which he consented.” (Hofmann v. De Marchena Kaluche & Asociados, 657 F.3d 1184, 1187 (11th Cir. 2011)). A consent judgment typically means the party is bound by the result and cannot appeal.

However, there is an established exception: when a party enters a consent judgment that expressly preserves appeal rights as to a previously litigated issue, the party may appeal that issue. The panel cites:

  • Perez v. Owl, Inc., 110 F.4th 1296 (11th Cir. 2024) – upheld appellate standing where a settlement expressly preserved the right to challenge a past ruling.
  • Dorse v. Armstrong World Indus., Inc., 798 F.2d 1372 (11th Cir. 1986) – same principle; the settlement “expressly recognized” the parties’ intent to appeal a prior ruling, and the court honored that intent.

B. Application to Regions’ Rule 68(c) Offer

The Rule 68(c) offer here did exactly what Perez and Dorse contemplate:

  • It explicitly stated it was not an admission of liability.
  • It explicitly said Regions “retains the right to appeal the Court’s determination of liability.”
  • It was made only after the court had decided liability against Regions; the offer resolved damages but conditioned itself on preserving the ability to challenge that liability decision.

Although the district court said it took “no position” on what appeal rights Regions retained, the appellate court emphasizes that the parties’ written agreement—the accepted Rule 68 offer—recognized Regions’ intention to appeal. Nothing in the district court’s judgment altered the monetary or fee‑related terms, and appellate subject‑matter jurisdiction cannot be created or destroyed by contract. (Walker v. Life Ins. Co. of N. Am., 59 F.4th 1176, 1195 (11th Cir. 2023)).

C. Mootness and Distinguishing Yunker

In Yunker v. Allianceone Receivables Mgmt., Inc., 701 F.3d 369 (11th Cir. 2012), the court held that an accepted Rule 68 offer mooted a case, despite an attempted reservation of appeal rights. The key facts there:

  • The parties had a “final, unconditional monetary settlement.”
  • The defendant had already paid the plaintiff pursuant to the settlement.
  • Success on appeal would not change the underlying payment obligations.
  • Therefore, neither side retained a financial stake in the litigation.

By contrast, in Thompson’s case:

  • The settlement was not unconditional; Regions’ ability to appeal liability was expressly preserved.
  • Success on appeal would change the legal basis and enforceability of the judgment.
  • Execution was stayed and the money was deposited with the court, so who ultimately gets to keep it depends on the outcome.

On these facts, there remains a live financial controversy and the appeal is not moot. The opinion aligns this outcome with Dorse and distinguishes Yunker on its facts.

Key principle: A Rule 68(c) judgment resolving damages but expressly reserving the defendant’s right to appeal a prior liability ruling does not moot the case, and the defendant has standing to pursue the appeal.

V. Substantive FLSA Analysis: Manipulating the “Regular Rate”

A. Legal Framework: FLSA Overtime and the “Regular Rate”

Under 29 U.S.C. § 207(a)(1), non‑exempt employees who work more than 40 hours in a workweek must be paid:

“at a rate not less than one and one‑half times the regular rate at which [they are] employed.”

The Supreme Court has long held:

  • The “regular rate” is a question of economic reality, not labels. It is “an actual fact” defined as the hourly rate actually paid for the normal, non‑overtime workweek. (Walling v. Youngerman‑Reynolds Hardwood Co., 325 U.S. 419, 424 (1945)).
  • Though the FLSA allows parties to agreed‑upon wages above the minimum, that freedom of contract does not include the right to compute the regular rate in a way that “negate[s] the statutory purposes” of the FLSA. (Walling v. Helmerich & Payne, 323 U.S. 37, 42 (1944)).

The Department of Labor’s regulations operationalize this anti‑evasion principle. The key provision here is 29 C.F.R. § 778.327 (“Belo plans; adjustments for overtime; ‘regular rate’ when the hours for which payment is made are changed”), which, as interpreted in Thompson I, supplies a clear test:

  • A pay change is permissible if justified by legitimate factors other than the number of hours worked (e.g., market rate changes, new job duties, economic downturn).
  • A pay change is impermissible if it is justified by “no factor other than” the length of the workweek itself (§ 778.327(b)). In such circumstances, the “device is evasive,” and the regular rate is treated as the higher rate paid in non‑overtime weeks for purposes of calculating overtime.

This “non‑circumvention rule” preserves the FLSA’s dual purpose:

  1. To spread employment by making overtime more expensive than hiring additional workers (economic disincentive to overwork), and
  2. To compensate employees for the burdens of long workweeks.

B. Law of the Case: Thompson I

The panel explicitly recognizes that Thompson I is both binding circuit precedent and law of the case. Under the law‑of‑the‑case doctrine, decisions made in a prior appeal govern in subsequent stages of the same case absent narrow exceptions. (Welch v. United States, 958 F.3d 1093, 1098 (11th Cir. 2020)).

In Thompson I, the court had already:

  • Adopted § 778.327 as the correct interpretive framework for claims that an employer has lowered an employee’s rate to dodge overtime.
  • Held that Thompson’s allegations gave rise to a plausible inference that Regions used “prohibited arithmetic” by cutting his hourly rate while raising his hours, nearly neutralizing any overtime premium.
  • Articulated the dispositive test: whether the rate reduction is justified by no factor other than the number of hours in the workweek.

Therefore, on remand and on this second appeal, the legal question was narrow: did Regions offer anything in the summary‑judgment record to show a legitimate, non‑hours‑based reason for the pay reduction?

C. Application on Summary Judgment

The undisputed facts were straightforward:

  • Thompson was paid $13.00/hour when working non‑overtime weeks.
  • When Regions began regularly scheduling him for 60‑hour weeks, his rate dropped to $11.15/hour (with overtime paid at 1.5 × 11.15).
  • When regular overtime ended in July 2020, Regions promptly restored his rate to $13.00/hour.

As Thompson I had already observed, under the reduced‑rate scheme, Thompson earned only about $0.50 more per week than he would have earned had he simply been paid $13.00/hour for all 60 hours—i.e., the time‑and‑a‑half premium was effectively wiped out.

On this record, the district court inferred, and the Eleventh Circuit agreed, that:

  • The timing and structure of the pay changes strongly suggested that the only “factor” driving the lower rate was the presence of overtime hours.
  • Regions offered no evidence of any other justification—such as changes in job responsibilities, performance issues, or market‑driven wage adjustments.

Regions instead argued that:

  • Thompson “freely contracted” for the lower rate in exchange for guaranteed overtime hours; and
  • This arrangement was beneficial to Thompson, who preferred more hours with one employer rather than multiple jobs.

The court was unmoved. It reiterated two core FLSA principles:

  1. Employees cannot waive FLSA rights by contract. As stated in Wethington v. City of Montgomery, 935 F.2d 222, 229 (11th Cir. 1991), the question whether there is an FLSA violation “does not hinge on contracts” because “employees cannot contract out of their FLSA rights.”
  2. Employers cannot “nullify” the FLSA by devices that manipulate base pay to offset overtime. (Thompson I, 67 F.4th at 1310). Even if an employee accepts such an arrangement because it is better than available alternatives, the statutory protection remains mandatory and non‑waivable. (Lynn’s Food Stores underscored that FLSA rights are not generally negotiable due to unequal bargaining power.)

The opinion underscores that the CEO himself admitted he did not negotiate the rate reduction with Thompson, and Thompson described it as a “take‑it‑or‑leave‑it” offer, further undermining the notion of meaningful negotiation.

Result: With no evidence of a legitimate, non‑hours‑based reason for the reduction, and strong circumstantial evidence that the only reason was the extended workweek, summary judgment for Thompson on liability was compelled under § 778.327 and Thompson I.

D. Rejection of Contrary Authorities and “Dicta” Argument

Regions tried several doctrinal escape routes, all rejected:

  1. Ninth Circuit’s Parth decision
    Regions cited Parth v. Pomona Valley Hosp. Med. Ctr., 630 F.3d 794 (9th Cir. 2010), where a complex payment scheme was upheld as consistent with FLSA regs. The Eleventh Circuit:
    • Noted that Parth is non‑binding.
    • Emphasized that the plan in Parth did not violate any specific DOL regulation, whereas Regions’ plan directly implicated § 778.327.
    • Observed that Thompson I had already considered and implicitly distinguished Parth.
  2. 1940s FLSA Supreme Court decisions
    Regions invoked:
    • Walling v. A.H. Belo Corp., 316 U.S. 624 (1942)
    • Walling v. Helmerich & Payne, 323 U.S. 37 (1944)
    • Walling v. Youngerman‑Reynolds Hardwood Co., 325 U.S. 419 (1945)
    • Bay Ridge Operating Co. v. Aaron, 334 U.S. 446 (1948)
    These cases recognized various permissible pay structures. But Thompson I had already reconciled those decisions with § 778.327, concluding that they do not authorize transparent rate‑cutting to blunt overtime premiums.
  3. 29 C.F.R. § 778.500
    Regions argued that because its scheme did not violate § 778.500 (a different regulation about artificial regular rates), it must be lawful. The panel held that:
    • Compliance with one regulation (§ 778.500) does not immunize conduct that violates another (§ 778.327).
    • The earlier panel’s reliance on § 778.327 was central to its holding and not mere dictum; it was necessary to finding Thompson stated a plausible claim.

E. Clarified Rule: Anti‑Evasion Standard for Regular Rate Reductions

Taken together with Thompson I, this decision effectively cements the following operative rule within the Eleventh Circuit:

An employer may prospectively reduce an employee’s non‑overtime hourly rate, but it may not do so when the reduction is justified by no factor other than the number of hours in the employee’s workweek. If the only reason for the cut is that the employer intends to schedule substantial overtime, the reduction is an evasive device, and the higher rate paid in non‑overtime weeks is the regular rate for overtime purposes in all weeks.

Freedom of contract does not extend to pay arrangements that, by “simple arithmetic,” neutralize the statutory time‑and‑a‑half premium.

VI. Attorney’s Fees, Rule 68 Judgments, and Prevailing‑Party Status

A. Statutory Basis: 29 U.S.C. § 216(b)

Section 216(b) of the FLSA requires that courts:

“shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.”

Dionne v. Floormasters Enters., Inc., 667 F.3d 1199, 1206 (11th Cir. 2012), emphasizes that the plaintiff must receive a judgment in his favor to be entitled to fees and costs.

B. What Makes a “Prevailing Party”?

Under the Supreme Court’s decision in Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001), and the Eleventh Circuit’s follow‑up in Smalbein v. City of Daytona Beach, 353 F.3d 901 (11th Cir. 2003), a “prevailing party” is one who obtains:

  • a court‑ordered material alteration of the parties’ legal relationship, and
  • judicial imprimatur on that change.

This can occur through:

  • a judgment on the merits;
  • a court‑ordered consent decree; or
  • other judicial action with equivalent effect (e.g., incorporation of settlement into dismissal order or retention of jurisdiction to enforce terms, per Chmielarz).

C. Rule 68 Judgments as Judgments with “Judicial Imprimatur”

Rule 68 allows a defendant to offer “to allow judgment on specified terms,” and if the plaintiff accepts, “the clerk must then enter judgment.” Fed. R. Civ. P. 68(a). Where liability has already been determined, a defendant can offer judgment as to the “extent of liability” under Rule 68(c).

In Utility Automation 2000, Inc. v. Choctawhatchee Elec. Co‑op., Inc., 298 F.3d 1238, 1248–49 (11th Cir. 2002), the Eleventh Circuit held:

  • Even though a court’s role in entering a Rule 68 judgment is largely “mechanical,”
  • The resulting judgment carries sufficient judicial imprimatur because it is enforceable by the court against the defendant.
  • Thus, a Rule 68 judgment that gives the plaintiff relief akin to what he sought makes him a prevailing party.

Here, the Rule 68 judgment:

  • Awarded back wages and liquidated damages totaling $5,650.82.
  • Was explicitly predicated on the district court’s summary judgment finding Regions liable for FLSA overtime violations.
  • Preserved the plaintiff’s right to seek fees and costs under § 216(b).
  • Was incorporated into a final judgment that the court reviewed for fairness under Lynn’s Food Stores and that remained subject to judicial enforcement.

Therefore, even though there was no injunctive relief and the court’s role in entering judgment was partly ministerial, the judgment was a “judicially sanctioned change in the relationship between the parties.” That is enough for prevailing‑party status under § 216(b).

D. Effect of the Stay of Execution

Regions argued Thompson could not be a prevailing party because execution of the judgment had been stayed pending appeal. The court rejected this:

  • Attorney’s fees are collateral to the merits and may be awarded even when the merits are on appeal. (Vasconcelo v. Miami Auto Max, Inc., 981 F.3d 934, 939–40 (11th Cir. 2020)).
  • The stay does not undo the court‑ordered change in legal rights; it simply preserves the status quo while the appeal proceeds.
  • In any event, with the merits affirmed, any argument based on the stay is effectively moot.

Bottom line: Thompson is a prevailing party under § 216(b), despite the Rule 68 mechanism and stay, because he obtained an enforceable judgment on his FLSA claim based on a judicial liability ruling.

VII. Lodestar Calculations and Reasonableness of Fees

A. Lodestar Method and Governing Standards

The court applies the traditional lodestar methodology:

  • Step 1: Lodestar – multiply the number of hours reasonably expended by a reasonable hourly rate. (Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564 (1986)).
  • Step 2: Adjustments – consider whether to adjust upward or downward based on factors such as “results obtained.” (Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

Applicants must show:

  • Reasonable hourly rates based on prevailing market rates for similar services.
  • Reasonable hours, excluding excessive, redundant, or unnecessary time. (Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988); ACLU of Ga. v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999)).

Courts may:

  • Engage in an hour‑by‑hour review; or
  • Apply an across‑the‑board percentage cut if a line‑by‑line review is impractical (Loranger v. Stierheim, 10 F.3d 776, 783 (11th Cir. 1994)), but must articulate principled reasons with enough detail to allow appellate review (In re Home Depot Inc., 931 F.3d 1065, 1089 (11th Cir. 2019)).

B. The District Court’s Fee Determination

The magistrate judge (adopted by the district court) found:

  • Total hours reasonably expended: 242.15, by three attorneys.
  • Hourly rates: $375 or $400, found reasonable for the market and the level of skill and experience.
  • Lodestar: $94,627.50.

C. Regions’ Objections and the Court’s Responses

  1. “Block Billing” and Vague Entries
    Regions broadly asserted that the billing records:
    • Were “voluminous” and “cumbersome.”
    • Relied on “block billing” (multiple tasks per entry). (Johnston v. Borders, 36 F.4th 1254, 1279 n.46 (11th Cir. 2022), defines true block billing as mixing unrelated tasks in one entry in a way that makes it difficult to ascertain the time spent on each.)
    • Used vague descriptions and reflected duplicative work.
    The magistrate judge:
    • Found the records generally did not reflect prohibited block billing—each entry either addressed a single task or closely related tasks.
    • Found descriptions sufficiently specific to allow evaluation.
    • Concluded that Regions had not complied with local rules requiring objections to identify specific entries and reasons, thus largely waiving generalized complaints.
    The Eleventh Circuit found no abuse of discretion. The level of explanation matched the specificity of the objections, which were mostly global and undeveloped.
  2. Partial Success / “Results Obtained”
    Regions argued for a reduction because Thompson did not ultimately obtain additional non‑overtime wage damages (the differential between $11.15 and $13.00).
    • Thompson at one point sought ~ $3,500 in such damages but dropped that theory in accepting the Rule 68 offer.
    • However, the court emphasized that the overtime and non‑overtime theories arose from the same “common core of facts.”
    • Under Hensley and Villano v. City of Boynton Beach, 254 F.3d 1302 (11th Cir. 2001), a plaintiff’s failure on some legal theories does not require a proportional reduction in fees if the overall relief is significant and the theories are related.
    • Here, Thompson prevailed on his only pleaded FLSA claim and obtained the full overtime plus liquidated damages available under that claim.
    Thus, the court held that no across‑the‑board reduction was required, and any hours spent developing the dropped damages theory were still reasonably expended on the litigation.

Implicit policy point: Allowing a substantial fee award in a relatively low‑dollar FLSA case is consistent with the Act’s enforcement mechanism, which relies on private attorneys general. Without fee‑shifting, economically modest claims like Thompson’s would rarely be litigated.

VIII. Recovery of Mediation Costs as Attorney’s Fees

Finally, the panel affirms the award of $858.75 for mediation. Under § 216(b), courts must award “a reasonable attorney’s fee” and “costs of the action.” The Eleventh Circuit in Evans v. Books‑A‑Million, 762 F.3d 1288, 1298–99 (11th Cir. 2014), held that:

  • “Reasonable attorney’s fee” includes “all reasonable expenses incurred in case preparation, during the course of litigation, or as an aspect of settlement.”
  • These “litigation expenses” may be recoverable even if they are not taxable as “costs” under 28 U.S.C. § 1920.
  • They are recoverable if they are of the kind typically billed to paying clients in the relevant legal community.

The magistrate judge, noting that mediation costs are commonly shifted in FLSA cases in the Southern District of Florida and that Regions did not show otherwise, awarded these expenses as part of the fee award. The Eleventh Circuit found no abuse of discretion and rejected Regions’ suggestion of “bad‑faith” mediation, which was based solely on Thompson having advanced an unsuccessful legal position at mediation.

Takeaway: In the Eleventh Circuit, reasonable mediation expenses in FLSA cases are compensable as part of a prevailing plaintiff’s “reasonable attorney’s fee” under § 216(b), assuming they are customarily billed to fee‑paying clients.

IX. Simplifying Key Legal Concepts

  • Regular Rate – The average hourly pay actually earned for non‑overtime hours in a normal workweek. It is the starting point for calculating the time‑and‑a‑half overtime rate.
  • Overtime Premium – The extra 0.5 × regular rate paid for hours over 40, added to the base 1.0 × regular rate, to reach 1.5 × regular rate.
  • Non‑Circumvention / Anti‑Evasion Rule – Employers cannot design pay structures that, in substance, erase the overtime premium by cutting base pay precisely when overtime hours are scheduled, unless they can show a legitimate reason unrelated to the number of hours worked.
  • Law of the Case – Once an appellate court has decided a legal issue in a case, that decision governs later stages of the same case absent exceptional circumstances. Here, Thompson I’s interpretation of § 778.327 bound the court and the district judge on remand.
  • Rule 68 Offer of Judgment – A procedural device allowing a defendant to offer judgment on specified terms; if accepted, judgment is entered. It is often used to encourage settlement and to shift post‑offer costs if the plaintiff does worse at trial than the offer. Under Rule 68(c), a defendant whose liability has been determined may offer judgment as to the extent of liability (e.g., damages) while preserving appellate challenges to liability.
  • Prevailing Party – A party who obtains a court‑ordered, enforceable change in the legal relationship between the parties (e.g., a judgment or consent decree). In FLSA cases, prevailing plaintiffs are entitled to reasonable attorney’s fees and costs.
  • Lynn’s Food Review – In FLSA cases, most private settlements of wage claims require court approval to ensure they are “fair and reasonable” resolutions of bona fide disputes, given the unequal bargaining power between employers and employees.
  • Lodestar – The baseline attorney’s fee calculation: reasonable hours × reasonable hourly rate. It can be adjusted up or down based on factors such as the results obtained.
  • Mediation Costs as Fees – While some costs (e.g., filing fees, certain transcripts) are “taxable” under § 1920, other litigation expenses such as mediation fees may be awarded as part of a “reasonable attorney’s fee” if they are standard client‑billed items.

X. Broader Impact and Practical Implications

A. For Employers and Payroll Practices

  • Beware of rate‑cutting linked to overtime schedules. Employers in the Eleventh Circuit should avoid reducing hourly rates around the same time they schedule increased overtime, unless they can clearly document independent reasons (e.g., restructuring, market downturn, performance issues).
  • Document legitimate justifications for pay changes. If an employer adjusts pay, contemporaneous documentation of non‑hours‑based reasons (job changes, across‑the‑board wage adjustments) will be critical in defending against a claim of FLSA evasion.
  • “Employee consent” is not a defense. Even if employees accept the arrangement, or it appears mutually beneficial, that does not insulate the employer if the effect is to evade overtime premiums.

B. For Employees and Plaintiff’s Counsel

  • Target patterns of pay changes around overtime. This case underscores that evidence of wage reductions during overtime periods, followed by restoration when overtime stops, is powerful circumstantial evidence of FLSA evasion.
  • Rule 68 is compatible with fee recovery. After a favorable liability ruling, plaintiffs can accept a Rule 68 offer for damages without necessarily forfeiting prevailing‑party status or fee entitlement, particularly when the offer reserves fee issues and the court enters an enforceable judgment.
  • Significant fees are available on modest claims. This decision reaffirms that FLSA fee awards are driven by reasonable effort, not by a strict proportionality to the damages recovered. This sustains the economic viability of litigating low‑dollar but important wage claims.

C. For Defense Counsel

  • Specificity in fee objections is essential. Global complaints about “block billing” or “vague” entries are unlikely to succeed. Objections should identify specific line items and offer concrete reasons and authority.
  • Consider carefully structured Rule 68 offers. Defense counsel who wish to settle damages while preserving appeals of legal rulings should draft Rule 68(c) offers that explicitly reserve appellate rights, mindful that this may preserve jurisdiction rather than mooting the case.

D. For District Courts

  • Apply § 778.327 rigorously. Where pay changes coincide with overtime and no non‑hours‑based justification is shown, summary judgment for plaintiffs may be appropriate.
  • Continue Lynn’s Food review in FLSA settlements. Even in the Rule 68 context, courts should ensure settlements are fair and reasonable resolutions of bona fide disputes.
  • Develop clear, reasoned fee orders. This opinion underscores the importance of explaining fee determinations with reference to the specificity (or lack of it) in the parties’ submissions and objections.

XI. Conclusion

The Eleventh Circuit’s decision in David Thompson v. Regions Security Services, Inc. reinforces and applies a robust anti‑evasion doctrine under the FLSA: employers may not blunt the statutory overtime premium by cutting workers’ base pay solely when longer workweeks are scheduled. The opinion underscores that freedom of contract ends where evasion of statutory rights begins.

Procedurally, the case clarifies that a Rule 68(c) judgment resolving damages, entered after a liability determination and preserving appellate rights, neither moots the controversy nor strips the plaintiff of prevailing‑party status. Such a judgment carries the judicial imprimatur required by Buckhannon and entitles successful FLSA plaintiffs to reasonable fees and costs, including commonly billed litigation expenses like mediation.

Although unpublished, the decision provides a detailed application of Thompson I and offers a practical roadmap for litigants and courts dealing with FLSA regular‑rate manipulation, Rule 68 settlements, and fee disputes in wage‑and‑hour litigation. It highlights that the FLSA’s protections are substantive, not merely formal; they cannot be bargained away or undone by clever arithmetic.