My mother always warned me about the dangers of following the crowd:

"If all your friends jumped off a cliff," she’d ask, "would you follow them? Don’t be a lemming!"

Lemmings, it turns out, don’t really commit mass suicide by hurling themselves en masse off cliffs, but I got the point. Doing things the same way as everyone else isn’t always a good idea, and it may create legal problems.

Eight years ago, a number of backstretch workers in New York sued prominent Thoroughbred trainer Nick Zito and the Nicholas Zito Racing Stable, Inc. They claimed that they usually worked more than 40 hours a week as grooms, hot walkers, and exercise riders, but were not paid overtime for the extra work. This practice, they said, violated both the federal Fair Labor Standards Act (FLSA) and New York state law.

A federal judge later expanded the lawsuit to include the original plaintiffs and "all individuals including past and present employees of Nicholas Zito Racing Stables who worked as watchmen, grooms, hot walkers, and in other occupations related to the horse racing industry within the state of New York from 1999 through the present."

That’s a lot of people, and some serious money is at stake if the backstretch employees win.

Everyone Does It That Way

The case bounced around federal court in the Eastern District of New York for several years. Then a few months ago, something actually happened. Magistrate Judge Kathleen Tomlinson ruled on cross-motions for partial summary judgment, both sides arguing that there was no need for a trial on at least some of the disputed claims because there were no material facts at issue and because they should win as a matter of law.

The procedural minutiae of the case might interest attorneys, but probably no one else. What matters to the parties is that both sides got some of the things they wanted, but neither side won everything. The case is scheduled for trial on September 4, 2012.

What should matter to the rest of us is the way the court handled a common defense.

The FLSA requires, among other things, that employers must compensate employees who work overtime—more than 40 hours per week—at a "rate not less than one and one-half times the regular rate at which he is employed." This is the familiar "time-and-a-half" rule. Employers also are required to keep accurate records of their employees’ hours and wages. Standard business practices in the horse industry that don't meet these basic requirements may not be good enough.

The District Judge had this to say about following the crowd and a so-called "relaxed approach" to record keeping:

"While Defendants continue to emphasize the fact that their payroll practices were customary, if not uniform, in the industry, such uniformity in the industry does not make the payroll practices of the defendants legal."

This doesn’t mean that the upcoming trial will be a slam dunk for the backstretch workers. That will be a question for the jury and there remains a substantial amount of evidence to be heard. A final decision isn’t likely to come any time soon. The judge’s words should be a wake-up call for other employers, though, to re-evaluate their record keeping and the way their employees are compensated.

Is working with horses like an assembly line job—40-hour work weeks, time-and-a-half for any overtime? Or is it unfair to apply common business practices to the horse industry?