Uncashed Wage Tenders Do Not Moot FLSA Claims; Foreseeable FMLA Leave Requires Notice of Duration

I. Introduction

Nyesha Swope v. Episcopal Foundation of Jefferson County (11th Cir. May 8, 2026) arises from payroll practices and leave disputes during the COVID-19 pandemic at St. Martin’s in the Pines, a retirement and assisted living facility in Alabama. The plaintiffs (Swope and other employees, including opt-ins) asserted:

  • FLSA claims alleging underpaid overtime because COVID-related premiums/bonuses were excluded from the “regular rate,” and alleging unpaid work during automatically deducted meal breaks.
  • FMLA claims (Swope individually) alleging interference and retaliation when she sought time off to care for her mother following a kidney transplant.

A key factual development was the employer’s post-suit payroll review. St. Martin’s issued checks in September 2022 to correct overtime calculations (including hazard pay, add-on pay, and weekend bonuses), while treating two “retention bonuses” as discretionary and excluding them. Several employees cashed the checks; Swope and Turner did not; McDole never received one.

The appeal presented four principal issues: mootness/de minimis defenses to the FLSA overtime claim; whether retention bonuses had to be included in overtime; whether meal-break evidence was sufficient; and whether Swope provided adequate notice for foreseeable FMLA leave.

II. Summary of the Opinion

The Eleventh Circuit (unpublished) affirmed across the board, holding:

  • FLSA overtime (hazard pay component): The claims of Swope, Turner, and McDole were not moot despite the employer’s tender of checks that were not cashed/accepted, and the claims were not “de minimis” under a freestanding common-law notion.
  • FLSA overtime (retention bonuses): Plaintiffs could not expand the case at summary judgment to seek inclusion of retention bonuses because those bonuses were not pled; the court therefore did not reach whether the retention bonuses were discretionary under the statute.
  • FLSA meal breaks: Summary judgment for the employer was proper because Swope’s testimony about the frequency/extent of interrupted meal breaks was too speculative to meet the “just and reasonable inference” burden.
  • FMLA interference/retaliation: Swope’s need for leave was foreseeable, requiring notice of anticipated timing and duration; her statements (“some time off” and a letter giving “two weeks notice” to go PRN) failed to provide the required duration, defeating both interference and retaliation claims.

III. Analysis

A. Precedents Cited

1. Appellate jurisdiction, standing, and “aggrievement”

  • Taylor v. Appleton (subject-matter jurisdiction must be confirmed before merits): the panel framed jurisdiction as a threshold inquiry.
  • Knight v. Alabama and Dairyland Ins. Co. v. Makover (only an “aggrieved” party may appeal): St. Martin’s argued Turner and McDole lacked appellate adversity because they had won partial summary judgment.
  • Forney v. Apfel (quoting United States v. Jose) (a party is aggrieved and may appeal when relief is granted in part and denied in part): the court held Turner and McDole remained adverse to the ruling that the tendered amounts were “correct” and that no greater recovery was available.

2. Summary judgment framework

  • Ramji v. Hospital Housekeeping Syst. (de novo review of cross-motions): set the appellate review standard.
  • FindWhat Investor Grp. v. FindWhat.com (no weighing evidence/credibility; disputes go to trial): anchored the court’s approach to evidentiary sufficiency.

3. Mootness and unaccepted tenders

  • Campbell-Ewald Co. v. Gomez (unaccepted settlement offer does not moot): the central authority for rejecting St. Martin’s mootness argument as to uncashed/unaccepted checks.
  • Arizonans for Off. English v. Arizona and Genesis Healthcare Corp. v. Symczyk (controversy must remain live; mootness when plaintiff loses personal stake): supplied the Article III baseline.
  • Powell v. McCormack (remaining live issues preserve jurisdiction): used to emphasize that a dispute over damages keeps the case live.
  • Keister v. Bell (mootness turns on redressability): supported the court’s point that the ability to award additional damages prevents mootness.
  • Lynn's Food Stores, Inc. v. U.S. Dep't of Labor (FLSA settlements generally require court approval): reinforced why unilateral employer payments/settlement posture do not automatically extinguish FLSA disputes.

4. The “de minimis” doctrine in wage-and-hour law

  • Anderson v. Mt. Clemens Pottery Co. (de minimis work time may be disregarded when small, indefinite, hard to record): the narrow FLSA-rooted de minimis concept.
  • Sandifer v. U.S. Steel Corp. (skepticism toward broad de minimis use; FLSA is “all about trifles”): the court relied on Sandifer to reject a broad, free-floating “de minimis non curat lex” defense to underpaid wages.
  • 29 C.F.R. § 785.47 (DOL regulation limiting de minimis exclusions): the panel emphasized that de minimis is about tiny, administratively unrecordable time increments—not small dollar amounts or conceded underpayments.

5. Pleading limits and raising new theories

  • Jones v. Lumberjack Meats, Inc. (new issues generally cannot be raised on appeal absent miscarriage of justice): supported affirmance where retention bonuses were not pled and plaintiffs did not properly seek amendment.

6. Meal-break/recordkeeping burdens in FLSA cases

  • Allen v. Bd. of Pub. Educ. for Bibb Cnty. (Anderson burden-shifting; plaintiff must provide a “just and reasonable inference” of amount/extent of work): the governing standard applied to Swope’s interrupted-lunch claim.
  • Shiver v. Chertoff and Fickling v. United States (summary-judgment production burdens): used to address Swope’s argument that she bore no burden as non-movant.

7. FMLA notice standards and elements

  • Munoz v. Selig Enters., Inc. and Ramji v. Hospital Housekeeping Syst. (interference elements; entitlement requires qualifying reason and adequate notice): framed the interference analysis.
  • White v. Beltram Edge Tool Supply, Inc. (foreseeable vs. unforeseeable leave; foreseeable leave requires more detailed notice): pivotal to classifying Swope’s leave as foreseeable and requiring notice of duration.
  • 29 C.F.R. § 825.302(c) (foreseeable leave: anticipated timing and duration) and 29 C.F.R. § 825.303(b) (unforeseeable leave: enough info to determine FMLA may apply): supplied the regulatory rule the court applied.

B. Legal Reasoning

1. Why the FLSA overtime claim was not moot despite tendered checks

The court treated St. Martin’s checks as, at most, an offer of satisfaction of the employees’ claim. Under Campbell-Ewald Co. v. Gomez, an unaccepted offer does not eliminate Article III adversity. Here, Swope and Turner did not cash the checks, and McDole never received one; moreover, the plaintiffs continued to dispute whether the tender represented the full amount owed. Because a court could still award additional damages (or resolve that no more was due), redressability remained and the case was not moot.

The court also noted the FLSA-specific overlay from Lynn's Food Stores, Inc. v. U.S. Dep't of Labor: FLSA settlements typically require judicial approval, which undercuts the notion that unilateral employer tender can automatically extinguish a live FLSA controversy.

2. Why “de minimis” did not defeat the FLSA overtime claim

St. Martin’s attempted to recast “de minimis” as a general equitable principle (small amounts not worth litigation). The panel rejected that approach, anchoring de minimis in wage-and-hour law to Anderson v. Mt. Clemens Pottery Co. and 29 C.F.R. § 785.47, which concern tiny, administratively impracticable-to-record time increments, not small underpayments of regular wages or premiums that are readily calculable from payroll data.

The court’s reliance on Sandifer v. U.S. Steel Corp. supplied the normative punch: the FLSA is “all about trifles,” so importing a broad common-law “law does not concern itself with trifles” doctrine would conflict with the statute’s protective design.

3. Why plaintiffs could not recover overtime based on retention bonuses

Although the district court addressed whether the retention bonuses were discretionary under 29 U.S.C. § 207(e)(3), the Eleventh Circuit affirmed on a narrower ground: the retention bonuses were not pled in the amended complaint, which focused on hourly COVID “ward” pay (add-on and hazard pay). The court treated the retention-bonus theory as an unpled expansion of the case that could not be introduced through summary-judgment argument, particularly where plaintiffs did not pursue amendment under the Federal Rules. Having resolved the issue on pleading grounds, the panel declined to reach the discretionary-bonus question.

4. Why the meal-break claim failed at summary judgment

Under Allen v. Bd. of Pub. Educ. for Bibb Cnty., where employer time records are unreliable or incomplete, an employee can prove damages via a “just and reasonable inference,” but must still provide sufficient evidence of the amount and extent of uncompensated work.

Swope’s testimony—she was “really not sure” and it “could have been” two or three days per week—was deemed speculative and did not quantify how much time she worked during unpaid breaks. Without evidence supporting a reasonable inference of the amount/extent of work, the burden never shifted to the employer, and summary judgment was appropriate.

5. Why the FMLA interference and retaliation claims failed for lack of adequate notice

The court classified Swope’s leave need as foreseeable under White v. Beltram Edge Tool Supply, Inc. because it arose from planned medical treatment (her mother’s transplant). For foreseeable leave, 29 C.F.R. § 825.302(c) requires notice sufficient to alert the employer to the need for FMLA leave and the anticipated timing and duration.

Even if Swope’s “two weeks’ notice to go PRN” letter and her statement that she needed “some time off” to care for her mother could be construed as invoking an FMLA-qualifying reason, the notice failed on a decisive point: it did not communicate the expected duration of leave. That deficiency defeated FMLA entitlement for interference purposes and also undermined her retaliation claim (because adequate notice is a necessary predicate when the need is foreseeable).

C. Impact

1. Wage-tender strategy and mootness in FLSA litigation

The opinion reinforces that employers in the Eleventh Circuit should not assume that unilateral tenders (even if framed as “full relief”) will moot an FLSA case where employees do not accept payment or continue to dispute the amount owed. It also signals that courts may view post-suit tenders through the lens of Campbell-Ewald Co. v. Gomez and the FLSA’s settlement-approval regime under Lynn's Food Stores, Inc. v. U.S. Dep't of Labor.

2. Constraining “de minimis” to its wage-and-hour boundaries

By rejecting an abstract “de minimis non curat lex” defense, the court limits de minimis arguments to the narrow category recognized in Anderson v. Mt. Clemens Pottery Co. and 29 C.F.R. § 785.47: small, indefinite, hard-to-record periods of time. Future defendants will need to frame de minimis disputes as timekeeping impracticability, not merely small-dollar underpayments.

3. Pleading discipline in premium-pay and bonus “regular rate” disputes

The decision underscores that plaintiffs challenging overtime calculations must plead the specific compensation components they contend should be included in the regular rate. Discovery revealing additional pay categories may warrant amendment—but absent timely amendment, courts may treat new “regular rate” theories as forfeited.

4. Evidence expectations for meal-break claims

The holding emphasizes that generalized recollections (“maybe” a few times a week) are unlikely to satisfy Allen v. Bd. of Pub. Educ. for Bibb Cnty. at summary judgment without some approximation of time worked. Plaintiffs and counsel should develop testimony or records sufficient to estimate the duration of interrupted breaks.

5. Practical consequences for FMLA requests tied to caregiving

The opinion provides a clear compliance lesson: when leave is foreseeable, employees must communicate not only the reason and start timeframe, but also an estimated duration. Employers, conversely, can defensibly insist on that information (and document its absence) when assessing whether an employee has triggered FMLA protections.

IV. Complex Concepts Simplified

  • “Regular rate” (FLSA): The baseline hourly rate used to compute overtime (usually 1.5×). If certain premiums/bonuses must be included in the regular rate, overtime increases accordingly.
  • “Mootness”: A case becomes moot when there is nothing left for a court to remedy. An unaccepted offer of payment generally does not moot a case because the plaintiff still has a stake and the court can still award relief.
  • “De minimis” under the FLSA: Not a “small dollars don’t matter” rule. It is a narrow timekeeping rule for tiny, hard-to-track minutes/seconds that cannot practically be recorded.
  • “Just and reasonable inference” (meal breaks/time records): When precise records are lacking, employees may estimate, but they must provide enough detail for a reasonable estimate of how much unpaid work occurred.
  • Foreseeable vs. unforeseeable FMLA leave: If you can anticipate the need (e.g., planned treatment), you must give more complete notice—especially how long you expect to be out.

V. Conclusion

Nyesha Swope v. Episcopal Foundation of Jefferson County affirms a set of pragmatic, litigation-shaping rules: unaccepted wage tenders do not moot disputed FLSA overtime claims; “de minimis” cannot be used as a broad equitable excuse to avoid paying statutory wages; overtime theories must be pled rather than introduced late via motion practice; meal-break claims require evidence sufficient to estimate time worked; and foreseeable FMLA leave requests must include an anticipated duration to trigger statutory protection. Collectively, the opinion tightens procedural and evidentiary discipline in pandemic-era premium-pay litigation and clarifies the notice content required for foreseeable caregiving leave.