Department of Labor: Asmussen 'willfully' underpaying staff

For the third time since 2012, Hall of Fame trainer Steve Asmussen is facing a lawsuit from the United States Department of Labor, with Secretary of Labor Alexander Acosta alleging more violations of the Fair Labor Standards Act of 1938.

A suit filed June 7 in the U.S. District Court for the Eastern District of New York claims Asmussen’s operations in the state — including at Belmont Park, Saratoga and Aqueduct — have since 2016 underpaid more than 100 grooms and hot walkers.

Asmussen in 2013 settled a similar lawsuit in this same court. In 2015, another suit in Kentucky alleged his barn didn’t keep proper wage and hour records.

The 2019 filing, first reported on by the New York Post, reads that, “Despite affirmatively recognizing and agreeing to comply with the FLSA as part of their resolution of previous overtime and record keeping violations, Defendants continue to willfully withhold from employees hundreds of thousands of dollars in wages owed for long hours caring for Defendant’s prize-winning horses.”

Horse Racing Nation has contacted Asmussen’s attorney, the Oklahoma City-based Clark Brewster, for comment.

Asmussen’s New York operation is only the latest back under the microscope after trainer Chad Brown was in May hit with $1.6 million in back wages and penalties after an investigation by the U.S. Department of Labor's Wage and Hour Division.

The latest lawsuit, which concludes by lists names of 112 employees who complied with the government, says Asmussen’s violations were three-fold:

“First, Defendants knowingly undercount employees’ actual hours worked, concealing from payroll and time records many of the hours spent performing assigned tasks.

“Second, rather than paying employees based on their actual hours worked, Defendants have paid a combination of fixed salaries and lump sums based on factors such as the number of horses cared for, or number of additional tasks assigned. Accordingly, in workweeks for which employees worked overtime, Defendants have failed to properly calculate and pay employees the required overtime premiums.

“Third, Defendants have denied their H-2B visa employees the proper additional overtime wages owed to those employees at the rates required by the Act and the H-2B non-immigrant visa program.”

Asmussen’s hot walkers are assigned a base schedule of roughly 46.5 hours per week, while grooms work 60 more hours over seven days, the filing says. But according to the lawsuit, that does not take into account race day activity and travel as well as other tasks that arise, such as overseeing a horse during veterinary or blacksmith visits.

The suit alleges that Asmussen “regularly failed” to compensate grooms and hot walkers for six to 12 hours per week. Some employees, meanwhile, were evidenced to have received pay for 40 hours week after week regardless of how many hours were logged.

For some overtime work, employees were funded a lump sump, such as a $25 payment for working on race day “without calculating the actual overtime premium owed to each employee for the additional hours as required” by the Fair Labor Standards Act.

Asmussen's "typical" weekly pay for a hot walker with four horse in his or her care was $462 in 2018. Grooms with that many horses were earning $662.75 weekly base pay last year, per the Department of Labor.

See the full filing below: