Employment Class Action Blog

Employment Class Action Blog

Information and Commentary on Class Action Cases Affecting Employers

Court Sends Plaintiffs Back to the Locker Room Unhappy When It Denies Conditional Certification

Posted in Conditional Certification, FLSA

In January 2014, NFL Commissioner Roger Goodell raised eyebrows (and ire) when he announced that the league was considering eliminating the extra point after a touchdown.  As Goodell put it, “the extra point is almost automatic,” given that it is kicked from the twenty yard line, and it is exceptionally rare that a professional NFL kicker would miss at such a short distance.

The same can be said for recent decisions regarding conditional certification in FLSA lawsuits.  As courts and plaintiffs have frequently pointed out, the first stage of the near-universally applied Lusardi FLSA certification requires that plaintiffs meet only a “lenient” evidentiary standard. While plaintiffs may try to argue that conditional certification is as “automatic” as an extra point, that may not always be the case.  Just as the Cleveland Browns proved when they botched the play on September 14, 2014, an extra point after a touchdown is never “automatic.”  And as much as no one wants to be compared to the Cleveland Browns, the recent, related cases of Pullen v. McDonald’s Corp., case no. 5:14-cv-11081 and Wilson v. McDonald’s Corp., case no. 2:14-cv-11082 in the Eastern District of Michigan, both managed to miss the “automatic” extra point at the first stage of certification.  Unlike the Browns’ play, however, the court’s reasoning was straight-forward and logical. Continue Reading

Merits Trump Certification Issues in Two Southern District of New York Cases

Posted in Class Certification, Independent Contractors, Overtime Claims

Three years ago, the Supreme Court found in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551-52 (2011) that courts “frequently” will need to look to the merits in determining whether certification is appropriate, particularly where the issues of the merits and certification may overlap.  Despite this pronouncement, plaintiffs often assert that courts should not consider the merits in making the certification determination.  In some instances, however, irrespective of certification, problems as to the merits will dispose of the case entirely, as two cases decided the same day by the United States District Court for the Southern District of New York demonstrate. Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, Case No. 13-cv-5008 (RJS) (S.D.N.Y. Sept. 16, 2014); Saleem v. Corporate Transportation Group, Ltd., Case No. 12-CV-8450 (JMF) (S.D.N.Y. September 16, 2014).  The two cases look very different in many respects, but both failed on dispositive motions because the named plaintiffs, or perhaps the class as a whole, had no claim.

In the first case, Lola, the putative class members were licensed attorneys doing work on a Skadden, Arps project through a legal staffing agency.   While the lead plaintiff worked for the agency, apparently (and successfully) to garner greater publicity, he named the Skadden, Arps firm first as the lead defendant.  The crux of his claim was that although he was an attorney, the work he did was basic document review that did not require any special legal judgment or discretion.  As a result, he contended, he should have been paid overtime for hours worked in excess of 40 hours per week.  Rather than engage in class discovery, the defendants moved to dismiss the claims under Rule 12(b)(6).  They asserted that the work was exempt under the professional exemption regardless of whether it was “glamorous”, “high-profile”, or neither.  The court found that the matter of whether the work was professional or not turned on state law, and as the work was performed in North Carolina, that state’s law controlled.  While the court ultimately concluded that the work could have been done by a non-lawyer under a lawyer’s supervision, that did not change the fact that document review (as opposed to mere photocopying or collating) was a legal service.  Without ever having to address whether a class was warranted, the court concluded that the work described in the complaint was within the scope of the practice of law and dismissed the case. Continue Reading

U.S. Open Umpires and Linesmen Are Independent Contractors, Court Rules

Posted in FLSA, Independent Contractors, Overtime Claims

In an opinion that disappointingly failed to take advantage of countless pun opportunities, a federal judge in New York otherwise got it right, ruling that the United States Tennis Association properly classified U.S. Open tennis officials as independent contractors, not employees.  Meyer v. United States Tennis Ass’n, No. 1:11-cv-6268 (S.D.N.Y. Sep. 11, 2014).

The lawsuit, filed during match play in the quarterfinals of the 2011 U.S. Open tournament, alleged that the USTA violated the Fair Labor Standards Act and New York Labor Law by declining to pay chair umpires and linesmen an overtime premium for work in excess of forty hours per week.  Applying the “economic realities” test applicable to FLSA claims, and applying similar New York State standards, the District Court held that the officials retained significant discretion over how and when to perform their jobs, retained a risk of profit or loss, and retained substantial flexibility to work for other employers, including other tennis organizations.  These factors, the Court held, required a conclusion that the officials were indeed independent contractors, and that the overtime rules therefore did not apply.  Continue Reading

Minnesota District Court Rejects Nationwide Scope and Conditionally Certifies Class of One Chipotle Store

Posted in Conditional Certification, FLSA

Employees win most motions for conditional certification under the FLSA, with many courts declining to perform a probing analysis at that stage.  A recent case from the District of Minnesota, in which the court still applied a deferential standard, had the unusual result that the court granted conditional certification as to a single Chipotle store when the plaintiffs sought a nationwide class.

In Harris v. Chipotle Mexican Grill, Inc., Case No. 13-cv-1719 (SRN/SER) (D. Minn., Sept. 9, 2014), the plaintiffs worked at a Chipotle restaurant in a Minneapolis suburb.  They contended that the company, due to payroll budget restrictions, required various hourly employees to work off the clock.  All of the named plaintiffs worked at the same location, but they sought certification of a nationwide class of approximately 40,000 workers at 1500 restaurants.  They relied heavily on the fact that the company encouraged the management of payroll costs and used the same electronic timekeeping system (cleverly named “Aloha”) at all of its stores.  The magistrate judge issued a report and recommendation that, among other things, would have certified such a class.  Continue Reading

Third Circuit Affirms Dismissal of Class Allegations for Vague Pleading

Posted in Class Action, FLSA

 “’Twas brillig, and the slithy toves
Did gyre and gimble in the wabe:
All mimsy were the borogoves,
And the mome raths outgrabe.”

Whenever I see the names of the Iqbal and Twombly pleading cases, I can’t help but feel that the names were clipped from lost lines of Lewis Carroll’s Jabberwocky poem, perhaps as something similar to “Iqbal were the Civil Rules, and Twombly they did reign.”  Ironically, whatever these names may have in common with Carroll’s nonsense poetry, they stand for the proposition that a Complaint must contain sufficient notice of what the defendant has done wrong for the plaintiff to proceed.  And as we have commented previously, a growing number of courts have concluded that the Iqbal and Twombly standards fully apply to class allegations. Continue Reading

District Court Refuses to Certify Class of “Non-Liturgical” Protestant Navy Chaplains

Posted in Class Action, Class Certification

Given the rich diversity and array of religions, and the First Amendment prohibitions both on the establishment of religion and impeding the free exercise of religion, the appointment and promotion of chaplains in the military has to be a singularly daunting task.  Those same difficulties ultimately proved to be the unraveling of a class challenging the method by which chaplains were selected by the United States Navy.  While the subject matter seems highly specialized, the case in fact addresses many logistic concerns that would apply to class actions involving other topics.

In In re:  Navy Chaplaincy, Case No. 1:07-mc-269 (GK) (Sept. 4, 2014), a group of non-liturgical protestant chaplains brought a putative class action against the Navy.  [An oversimplification:  Non-liturgical practitioners are less concerned with formal or structured worship services than other groups, such as Roman Catholics or Episcopalians.]   The crux of their claim was the contention that the Navy favored liturgical protestants and others (possibly Catholic priests and Jewish rabbis) to them in discipline, having to preside over more liturgical worship, and the making of promotions and related decisions.   You already know that the court denied certification (and did so seven years after the case was filed).  Why?  Many of the court’s reasons sprang from the Supreme Court’s opinion in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), but others arose from inherent problems with the class and questionable tactical decisions from the plaintiffs’ attorneys. Continue Reading

Ninth Circuit Reverses District Court, Rules FedEx Drivers in California and Oregon are Employees

Posted in Independent Contractors

The brain teaser game, What am I? can keep kids and adults occupied for hours:

The more you take of me, the more I leave behind.  What am I?
I have a face but no eyes, hands but no arms.  What am I?
I disappear every time you say my name.  What am I?

(Don’t worry.  Answers are below.)

The less popular brain teaser game, Am I an independent contractor or an employee? can keep courts and lawyers occupied for years.

Last week the Ninth Circuit issued a pair of decisions in the nearly-decade long misclassification dispute between FedEx and its drivers, with the Court of Appeals ruling that drivers in California and Oregon are FedEx employees, not independent contractors.  Alexander et al. v. FedEx Ground Package Sys., Inc. (California); Slayman et al. v. FedEx Ground Package Sys., Inc. (Oregon).

Continue Reading

Sixth Circuit Affirms Dismissal of Class Claims Regarding Disability Benefits

Posted in ERISA

ERISA benefit claims are frequently of only modest size individually, but can become overwhelming in a class context.  A decision this week from the Sixth Circuit affirms the dismissal of a putative class-wide disability claim under a company pension plan.  The case is noteworthy because the court addressed the merits of the plaintiff’s individual claim before saddling both sides with class discovery and class issues.

In Radell v. Michelin Retirement Plan, Case No. 13-6401 (6th Cir. Aug. 21, 2014), the question was not entitlement to disability benefits, but, rather, whether the company could adjust those benefits for early retirement.  The plaintiff contended that if he retired early due to a disability, the plan did not provide for an actuarial reduction.  The plan, however, asserted that it did, and awarded a benefit based on the employee’s age (57) rather than the plan’s normal retirement age of 65.  After exhausting his administrative remedies, the employee filed suit under ERISA.  He brought claims not only on his own behalf, but on behalf of all disability retirees who had also received actuarial deductions.

Interestingly, the Sixth Circuit found that the plan was ambiguous on this issue, and could be read to support either side.  Because of good Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), language, however, the court deferred to the plan’s interpretation and found that the plan was entitled to summary judgment in its favor.  That ruling similarly put an end to the class claims. Continue Reading

The California Court of Appeal Disregards Differences Among Cell Phone Plans; Orders Reconsideration of Refusal to Certify Class Seeking Reimbursement of Employee Expenses

Posted in Class Action, Class Certification

We are now seeing “bring your own device policies” in the class action context, and at least one court has glossed over differences among cell phone plans and usage to leave open the possibility of certifying a class in that context.

In Cochran v. Schwan’s Home Service, Inc., Case No. B247160 (Cal. App. 2d Dist., Aug. 18, 2014), the plaintiff alleged that the defendant employer failed to reimburse a proposed class of 1500 customer service managers for their personal cell phone charges incurred while doing work.  They asserted their claims under Section 2802 of the California Labor Code, which seeks to prevent employers from passing operating expenses on to their employees. Continue Reading

New York District Court Conditionally Certifies Class of Interns

Posted in Class Action, collective action, Conditional Certification, FLSA

A Blog About Bloggers

Have you read any of the following lately?

“Chinese Government Fans the Flames of the Ebola Zombie Rumors”

“Arrested for Marijuana, Jackie Chan’s Son Could Face Execution”

“Who is Dumpling All These Tuxedo Cats at a California Animal Shelter?”

These are all recent headlines from various blogs run by Gawker Media with names like “Gawker,” “Jezebel,” and “io9.”  In Mark v. Gawker Media LLC, Case No. 13-cv-4347(AJN) (S.D. N.Y. Aug. 15, 2014), Gawker became the subject of yet another in a line of cases involving unpaid interns.  Four interns brought suit under the FLSA, contending that they had performed work such as “writing, researching, editing, lodging stories and multimedia content, promoting content on social sites, moderating the comments forum and managing the community of Gawker users.”  Claiming they were largely unpaid replacements for paid employees, the plaintiffs sought to recover at least the minimum wage and moved for conditional certification under section 16(b) of the FLSA. Continue Reading