Employment Class Action Blog

Employment Class Action Blog

Information and Commentary on Class Action Cases Affecting Employers

New York District Court Denies Conditional Certification of Second FLSA Collective Action

Posted in Collective Action, Conditional Certification

flsaBecause of the low standard employed by many courts, decisions denying conditional certification in FLSA cases are generally in the minority, but some careful courts will continue to make such decisions. A recent case is notable not only for the fact that the court denied conditional certification, but also that it actually examined the events in a related case to support its decision.

In Augustyniak v. Lowe’s Home Center LLC, Case No. 14-CV-00488 (W.D.N.Y., Aug. 20, 2015), the plaintiffs sought to represent a class of human resource managers against the Lowe’s do-it-yourself chain nationwide. Two years previously, the same attorneys had brought a similar case, captioned Lytle v. Lowe’s Home Centers Inc., Case No. 8:12-cv-01848, involving a different time period for essentially the same class in a Florida district court. The district court in the Lytle case had conditionally certified the class and the matter ultimately settled, although not without controversy. The district court at least twice rejected the parties’ proposed settlement agreement due to issues over the formulas used to determine how much class members would receive.  Continue Reading

DOL Memo Provides Script for FLSA Collective Actions Alleging Independent Contractor Misclassification

Posted in FLSA, Independent Contractors

Target with three arrows isolatedThe all-time best The Far Side cartoon (based on an unscientific survey, sample size of me) is the one with two deer standing in the forest, one with a red circular target imprinted on its chest. The other deer says, “Bummer of a birthmark, Hal.”

Poor Hal. Blessed with the ability to walk upright, but cursed by that darned target.

In an Administrator’s Interpretation issued July 15, 2015, the Wage and Hour Division (WHD) of the Department of Labor placed a similar target on every company that uses independent contractors. If this describes your company, consider yourself to be Hal. You may be blessed with the ability to avoid paying withholding tax, providing workers’ compensation coverage, and offering employee benefits, but there’s also that darned target. Continue Reading

Washington Federal Court Decertifies Class of Insurance Agents Alleging Entitlement to Overtime

Posted in Class Action Fairness Act, Independent Contractors

workersChallenging the classification of workers as independent contractors continues to be a growing area of focus for plaintiffs’ attorneys. However, as a recent federal case from Washington demonstrates, the fact-intensive inquiry that is the hallmark of the independent contractor inquiry is not compatible with classwide resolution – particular post-Dukes.

In Rodney v. Bankers Life and Casualty Co., Case No. C14-766RSL (W.D. Wash. June 30, 2015), the plaintiffs were insurance agents who worked for and were classified by Bankers Life as independent contractors. The plaintiffs alleged that they were actually common law employees and, thus, entitled to overtime under Washington’s Minimum Wage Act. The case was originally brought in Washington state court and certified as a class before Bankers successfully removed the case to federal court under the Class Action Fairness Act. Bankers then moved to decertify the class. Continue Reading

Unpaid Internships Given New Life by the Second Circuit

Posted in Wage and Hour

wilson and vaughnThis Blog is Not about Owen Wilson and Vince Vaughn, But…

“The Internship” fails the first test of merit for a comedy: “Is it funny?”

I find that opening line in a review from The New Yorker hilarious. (Funnier than the movie.)

The movie, of course, tried to be funny. Real unpaid internships, on the other hand, have become a serious legal matter. Many class actions have been filed by unpaid interns alleging that they performed the work of employees and were therefore entitled to receive minimum wage and overtime pay.  Continue Reading

FedEx to Pay $228 Million in Independent Contractor Misclassification Settlement

Posted in Independent Contractors

money 490527761_lgThings that $228 Million will buy:

– LeBron James’s waterfront mansion in Miami, listed for $15 million

– A 710-year old copy of the Magna Carta, sold in 2007 for $21.3 million

– The Oakland A’s, sold in 2005 for $180 million

– Three personal submarines, at $2 million each; and

Tivi Island in Fiji (yes, the whole island), available for $5 million.

Or you can settle a lawsuit.   Continue Reading

Supreme Court Agrees to Hear Case Addressing Scope of Wage and Hour Class and Collective Actions

Posted in Collective Action, FLSA, Retail, Wage and Hour

supreme court iStock_000005215190_LargeIt’s hard enough to predict what the Supreme Court will do on a given case even after it has been briefed and oral argument has been heard. It’s even harder when all we have is the decision accepting certiorari, but this one is important enough to note. The Supreme Court has now accepted certiorari in a case that may present significant issues regarding when class and collective actions may be certified, and whether and how damages and liability may be determined on a class-wide basis. Continue Reading

Justices Pass on Second Opportunity to Resolve the California PAGA Divide in the Bridgestone Case

Posted in Arbitration, PAGA, Retail

Employment Class ActionFor a second time the U.S. Supreme Court declined to hear a case challenging a California Supreme Court holding that the state’s Private Attorneys General Act (PAGA) could not be waived in a mandatory arbitration agreement. The January 5, 2015, certiorari petition in Bridgestone Retail Operations, LLC v. Brown, No. 14-790 asserted:

This case presents an issue of exceptional importance not only because it is an attempted end-run around this Court’s decision in [AT&T Mobility v. Concepcion] but also because it allows states to evade the [Federal Arbitration Act (FAA)] more broadly by rendering any claims non-arbitrable simply by deeming it brought “on behalf of the state.” (Petition at 3-4).

In a January 21, 2015, posting we discussed the denial of certiorari in a predecessor case, CLS Transp. Los Angeles LLC v. Iskanian, No. 14-341, leaving in place the California Supreme Court’s June 23, 2014, ruling that PAGA claims could not be waived in an arbitration agreement.

Continue Reading

Unanimous Supreme Court Holds EEOC Must Conciliate

Posted in Discrimination, EEOC

gender discrimination. . .  just not very much.

Title VII was passed with a strong bias toward voluntary, non-litigation methods of dispute resolution. Indeed, the statute requires that even when the EEOC has found probable cause, the Commission “shall endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. section 2000e-5(b). It was a good idea then and remains so today.

But particularly in recent years, the EEOC has forgone this commonsense statutory imperative in the apparent hopes of scoring greater publicity. Many courts have questioned, and even dismissed, cases brought by the EEOC because of its use of only the most feeble conciliation efforts, if any at all. We blogged one such case over four years ago, in which a Missouri District Court dismissed a pattern and practice claim that the EEOC claimed affected 50 employees, yet it had attempted conciliation on only a handful of individual claims. Other courts adopted different approaches. Continue Reading

Video Interview: Discussing Social Media and Class Actions with LXBN TV

Posted in Class Certification, Collective Action, FLSA

Following up on my recent post discussing the use of social media for class action notices in a lawsuit filed against Gawker Media, I had the opportunity to discuss the subject with Colin O’Keefe of LXBN. In the interview, I explain what’s happening in this specific case and how it’s laid some ground rules for the practice.

Gawker Interns and the Use of Social Media to Notify Potential Class Members

Posted in Collective Action, Conditional Certification, FLSA

Social media has dramatically impacted many areas of law, and class and collective action litigation is no exception. Recently, a number of former internsbigstock-Social-Media-Sign-28292228 who sued Gawker Media LLC and its owner Nick Denton (Gawker) for wage and hour claims repeatedly sought court approval to distribute court-authorized notice of the action through social media.

The plaintiffs claimed that Gawker, an online media company and weblog network, violated the Fair Labor Standards Act (FLSA) and New York State Labor Law by failing to properly pay its interns the minimum wage and by failing to maintain proper records. The action was originally filed on June 21, 2013, and was conditionally certified under the FLSA on August 15, 2014. We initially blogged about this case on August 20, 2014. Continue Reading