September 30, 2025|Franchise Frontlines
September 30, 2025 | U.S. District Court for the Eastern District of Virginia | Unpublished Opinion
Executive Summary
In an unpublished decision, Judge M. Hannah Lauck of the Eastern District of Virginia granted in part plaintiffs’ motion for partial summary judgment and denied Hanover County’s cross-motion in a hybrid FLSA collective action and Virginia state-law class action brought by Sheriff’s deputies. The court concluded that, as a matter of law, the County was plaintiffs’ joint employer under the Fair Labor Standards Act (FLSA) and the Virginia Overtime Wage Act (VOWA), and was their employer under the Virginia Gap Pay Act (VGPA). However, the court declined to determine whether deputies’ time spent “marking on” the radio before the start of their scheduled shifts was compensable work. The judge held that several material factual disputes must be resolved by a jury, and thus the case will proceed to trial solely on the issue of whether pre-shift “mark-on” time counts as hours worked.
Relevant Background
This case arises from the unique employment structure governing law-enforcement personnel in Hanover County, Virginia. Under the Virginia Constitution, the Sheriff is an independently elected constitutional officer. The Sheriff’s Office employs approximately 287 deputies across administrative, patrol, investigative, and judicial divisions. According to the allegations and record evidence, however, the deputies’ employment relationship is intertwined with the County, which provides payroll services, HR onboarding, benefits administration, and essential infrastructure for the deputies’ work.
Deputies complete new-hire paperwork through the County’s Human Resources Department and attend County HR orientation. Their paychecks and W-2s are issued directly by the County, and all funds used to compensate deputies flow through County accounts before distribution. The County also owns the Sheriff’s Office headquarters, the police vehicles deputies use—including take-home patrol units—computers, radios, and other personal property used on duty. Deputies receive health, dental, vision, and life-insurance benefits through the County’s plans.
In 2021, the Sheriff and the County jointly created a new Public Safety Pay Plan designed to standardize target salaries, recruitment incentives, and compensation alignment for sworn deputies. Under this jointly administered plan, deputies’ placement and salary adjustments were managed by the County’s HR Department, with the County responsible for interpreting and updating the plan. The County also sets the Sheriff’s Office annual budget and pays invoices received by the Sheriff’s Office.
While the Sheriff controls day-to-day operations—such as hiring, firing, supervision, development of operating procedures, shift schedules, and roll-call practices—the County handles central employer functions such as payroll, pay plan administration, benefit administration, property provisioning, and operation of essential systems like Computer-Aided Dispatch (CAD) and Kronos timekeeping. The County’s Emergency Communications Center, staffed by County personnel, receives calls for service and coordinates radio dispatch to deputies using systems owned and maintained by the County.
A key factual component underlying the lawsuit involves the practice of “marking on.” Deputies may indicate to dispatch that they are available by stating the radio code “10-41,” which dispatch and Sheriff’s Office policies label as “begin duty.” Some deputies alleged that they were trained to mark on before the start of their scheduled shift, often as soon as they left their driveway or entered the county limits. Others asserted that they were effectively expected to handle emergencies while marked on, including responding to incidents during their commutes in take-home vehicles. The County, however, presented testimony that marking on did not make a deputy “on duty” for compensation purposes, that deputies were not expected to respond to calls before their shifts began, and that “marking on” served primarily logistical purposes within the dispatch system.
In May 2023, plaintiffs filed a FLSA collective action and state-law class action alleging that the County and Sheriff jointly employed deputies and failed to compensate them for pre-shift “mark-on” time. The Sheriff was dismissed from the case earlier in litigation based on constitutional immunity, leaving the County as the sole defendant. Plaintiffs sought summary judgment on liability, while the County sought summary judgment arguing that it was not an employer and that marking-on time was non-compensable.
Decision
The court granted plaintiffs’ motion in part, holding that the County was plaintiffs’ joint employer under the FLSA and VOWA and their employer under the VGPA. The court denied summary judgment to both sides on the compensability of marking-on time.
On the joint-employer issue, the court applied the Fourth Circuit’s Salinas test, which examines whether two entities are “not completely disassociated” with respect to the essential terms and conditions of a worker’s employment. The court found that all six Salinas factors favored finding a joint-employer relationship. The court pointed to the County’s administration of payroll and benefits, ownership of buildings, equipment, and vehicles, provision of HR orientation, control over the budget, joint creation and administration of the pay plan, and control over dispatch systems. These functions, the court reasoned, demonstrated that the County and Sheriff shared responsibility for critical aspects of deputies’ employment. The court rejected the County’s argument that joint employment was “legally impossible,” concluding that FLSA’s definition of employer is far broader than common-law or state-law analogues.
After confirming joint employment, the court concluded that plaintiffs were plainly employees—not independent contractors—under the second part of the Salinas test. The County conceded that plaintiffs were employees for purposes of the state statutes. As a result, the County was also plaintiffs’ employer under the Virginia Gap Pay Act, which mirrors the FLSA’s structure and terminology and is expressly designed to operate in conjunction with federal overtime law.
The court then turned to whether pre-shift “mark-on” time was compensable under the FLSA, the VGPA, or the VOWA. The court explained that compensability turns on whether marking on constitutes a “principal activity,” an integral and indispensable part of a principal activity, or a preliminary activity excluded under the Portal-to-Portal Act. The court found that three material factual disputes precluded summary judgment.
First, the court held that the parties presented conflicting evidence on whether deputies were required to mark on before the scheduled start of their shift. Some testimony suggested deputies were trained to do so and consistently did so as a matter of practice; other testimony described marking on as optional or variable.
Second, the court found a dispute over whether marking on signified being “on duty.” Plaintiffs offered evidence that dispatch coded 10-41 as “begin duty” and that deputies were expected to respond to events when marked on. The County countered with testimony that deputies had no on-duty obligations until their scheduled shift, regardless of marking-on time.
Third, the court found disputed evidence regarding whether deputies were actually dispatched or expected to respond to calls after marking on but before their shifts. Some deputies reported rare instances of responding based on proximity, while others denied being dispatched before shift start. Because these disputes go directly to whether pre-shift time constitutes work, the court held that a jury must resolve them.
The court also noted that the same factual disputes precluded summary judgment on compensability under the VGPA and the 2021 version of VOWA. The court ordered additional briefing on whether the 2021 version of VOWA incorporated the Portal-to-Portal Act.
Looking Forward
This decision may offer practical insights for employers—including franchisors, multi-unit systems, staffing networks, and public-private entities—navigating joint-employer allegations and pre-shift compensability issues. In particular, the ruling highlights that courts may take an expansive view of joint employment when two entities share payroll, benefits, HR functions, equipment, facilities, or operational infrastructure. It also illustrates how, even where supervisory authority rests with one entity, shared administrative functions may lead courts to conclude that both entities codetermine essential terms of employment.
On the compensability question, the decision indicates that disputes about pre-shift activities, on-call expectations, or technological “status indicators” such as radio codes or mobile-app log-ins may be fact-intensive and resistant to summary judgment. Employers that rely on early log-in processes, vehicle-based communications, or dispatch systems may benefit from clear documentation of expectations about when an employee’s duties begin. The ruling also underscores that courts may permit claims involving pre-shift activities to reach trial when the record contains conflicting evidence about whether those activities are integral to the employee’s principal work.
Ultimately, the decision reflects only one court’s interpretation of the allegations and evidence before it. Other jurisdictions may apply different joint-employer frameworks or reach different outcomes regarding compensability. Nonetheless, the ruling serves as a reminder that joint-employment determinations and off-the-clock work claims are highly fact-dependent and that employers may wish to proactively evaluate how their systems and operational practices could be perceived when scrutinized under broad statutory definitions.
This article is based solely on the opinion of the Court in this matter. The author has not conducted any independent investigation into the facts. For the avoidance of doubt, each statement related to the law and facts in this article is drawn from the Court’s opinion in this case.
Thomas O’Connell is a Shareholder at Buchalter APC and Chair of the firm’s Franchise Practice Group. For questions about this article or media inquiries, you can contact Tom at toconnell@buchalter.com.
This communication is not intended to create, and does not create, an attorney-client relationship or any other legal relationship. No statement herein constitutes legal advice, nor should it be relied upon or interpreted as such. This communication is for general informational purposes only and is not a substitute for legal counsel. Readers should not act or refrain from acting based on any information provided without seeking appropriate legal advice specific to their situation. For more information, visit www.buchalter.com.
