LMRA Preemption Dismisses Overtime Claim in Levi Strauss Wage Suit

SAN FRANCISCO (LN) — U.S. District Judge Rita Lin granted in part and denied in part Levi Strauss & Co.’s motion to dismiss a wage and hour lawsuit filed by former employee Jermaine Whitfield, dismissing the Nevada state-law overtime claim as preempted by the Labor Management Relations Act while allowing the Fair Labor Standards Act and waiting time claims to proceed.

Whitfield, a former employee at Levi Strauss’s Henderson Distribution Center, brought a putative class and collective action asserting various wage and hour claims under Nevada state law and the Fair Labor Standards Act.

Levi Strauss moved to dismiss the operative complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

Lin ruled that Whitfield’s overtime claim under N.R.S. 608.018 is preempted by section 301 of the LMRA because Whitfield did not follow the grievance procedures provided in the collective bargaining agreements governing his employment.

N.R.S. 608.018 expressly provides that it does not apply to “[e]mployees covered by collective bargaining agreements which provide otherwise for overtime.”

The Henderson Distribution Center CBA requires overtime compensation for certain hours not covered by the state statute and provides for overtime wage rates with different multipliers.

Because the CBA provides overtime in a “different way or manner” than the state law, the statute does not apply to Whitfield, Lin wrote, citing Nevada Supreme Court precedent.

Even if the CBA requires state law to fill of its terms, Whitfield’s overtime claim would still be one to enforce his rights under the CBA, not a claim brought under the state statute.

Accordingly, Whitfield’s overtime claim exists “solely as a result of [a] CBA” and is therefore preempted, the judge wrote.

At the hearing on the motion, Whitfield’s counsel agreed that the overtime claim must be dismissed if it is preempted given the CBAs’ mandatory grievance procedures.

Counsel indicated that if the claim were to be dismissed, Whitfield would request leave to amend to add allegations that the CBAs’ grievance procedures violated the unions’ duty to fairly represent him.

Because the record does not establish that such an amendment would be futile, dismissal is with leave to amend.

Whitfield’s waiting time claim under Nevada state law is not preempted, Lin ruled.

Levi Strauss argued that the waiting time claim requires interpreting the CBAs, observing that the CBAs contain provisions concerning shift differentials, wage rates, attendance, rest periods, and lunch periods.

But the waiting time claim does not require interpreting the CBAs because there is no “active dispute over the meaning of contract terms,” the judge wrote.

Despite prompting, Levi Strauss’s counsel could not identify any provisions in the CBAs that discuss whether Whitfield and other employees are entitled to payment for time spent waiting to swipe in or, if they came in early to avoid waiting, spent working before their shifts officially started.

The provisions to which Levi Strauss points instead bear on the extent of Whitfield’s damages—i.e., the amount of pay to which he is entitled for waiting time—and “the mere need to look to the collective-bargaining agreement for damages computation” is an insufficient basis to find a claim preempted.

Counsel for Levi Strauss agreed that if Whitfield’s waiting time claim survives LMRA preemption, so too does the claim for failure to timely pay all wages due.

The operative complaint states an overtime claim under the FLSA on behalf of a national collective.

Levi Strauss argued only that the operative complaint fails to plausibly allege that the timekeeping mechanics and waiting time/swipe-in processes at the Henderson distribution center were also in effect at the distribution centers in Kentucky and Mississippi.

Accordingly, Levi Strauss argued that the scope of the collective should be limited to the Henderson distribution center.

That challenge is not properly brought as a Rule 12(b)(6) motion to dismiss, Lin ruled.

A “12(b)(6) motion must seek to dispose of an entire claim,” not a portion of a claim, the judge wrote, citing precedent.

Instead, a challenge to the scope of the FLSA collective is more properly addressed in adjudicating a motion for notice to the collective, where Whitfield would be entitled to provide evidence beyond the allegations of the complaint supporting a common practice extending beyond the Henderson location.

Lin denied the motion to dismiss the FLSA claim.

If Whitfield wishes to file a Second Amended Complaint correcting the deficiencies identified above, he shall do so by May 11, 2026.

If no such amended complaint is filed by that date, the claims that were dismissed in this Order will remain dismissed, and the case will proceed on the surviving claims only.