Employer’s Profit-Sharing Plan Is Not Covered by ERISA, Pennsylvania Federal Court Finds

Gilbert BroskyBy Gilbert Brosky on Posted in ERISA

One of the most fundamental, but often overlooked, defenses in ERISA litigation is that the plaintiff did not allege a violation of an actual ERISA plan. An at-issue document/provision cannot be an ERISA pension plan unless it provides retirement income or “deferral of income beyond covered employment.” Designated employee retirement plans and 401(k) plans will easily meet this definition. However, as the recent decision in Scanlan v. American Airlines Group, Inc., 18-4040 (6/18/2019) demonstrates, employers’ bonus and incentive plans do not automatically fall within this definition merely by allowing participating employees to apply the provided compensation toward their retirement. Continue Reading

NY Law Doesn’t Prevent Arbitration of Sexual Harassment Claims

John LewisBy John Lewis on Posted in Arbitration

Recent New York legislation in reaction to the #MeToo movement has sought to limit or foreclose arbitration of employment-related disputes. See N.Y. C.P.L.R. § 7515 (“§ 7515”) and its June 19, 2019, amendment, bill S6577/A842. The bill, initially signed into law in April 2018, was to “deal[] with the scourge of sexual harassment.” See N.Y. State Senate, Stenographic Rec., 241st Leg., Reg. Sess., at 1855 (Mar. 20, 2018). But some believed that the Federal Arbitration Act (FAA) would likely preempt the legislation, especially when § 7515(b) expressly provided “[e]xcept where inconsistent with federal law.”

Now, one district court has found the legislation is preempted by the FAA. See Mahmoud Latif v. Morgan Stanley & Co., LLC, et al., Case No. 1:18-cv-11528 (S.D. New York 6-26-19). On June 26, 2019, District Judge Denise Cote found provisions of New York law impacting arbitration preempted by the FAA. In reaching that conclusion, Judge Cote applied an analytical approach consistent with recent U.S. Supreme Court decisions. Continue Reading

Tennessee District Court Conditionally Certifies ADEA Collective Action

Greg MersolBy Greg Mersol on Posted in FLSA

Connecting the dots will likely be a problem down the road . . .

The overwhelming majority of employment class or collective actions today are wage and hour matters. The two-step paradigm for certifying wage and hour claims under the Fair Labor Standards Act has, despite Congressional intent to the contrary, enabled much of that boom in overtime litigation.

The Age Discrimination in Employment Act expressly incorporates much of the FLSA’s enforcement procedure, including the section 16(b) requirement that similarly situated claimants actually opt in. Indeed, one of the most commonly cited early decisions supporting the procedure, the Lusardi opinion (118 F.R.D. 463 (D.N.J. 1987)), was actually in an ADEA case. Incidentally, the same procedure applies under the Equal Pay Act, although such claims are far less common than those for overtime. But while the ADEA uses FLSA procedures, collective actions under that statute are still much less common than those under the FLSA. Continue Reading

Can Delivery Drivers Be Compelled to Arbitrate After New Prime? New Jersey Appellate Courts Seem to Take Conflicting Positions

John LewisBy John Lewis on Posted in Arbitration

After New Prime v. Oliveira, 139 S. Ct. 532 (2019), many wondered if state arbitration law could be applied when transportation workers were found to be exempt from the Federal Arbitration Act (FAA) based on § 1. See our January 17, 2019, March 12, 2019 and April 29, 2019 blog posts on the issues raised by New Prime in the transportation industry. Two New Jersey appellate panels now have considered the issue and reached what appear to be conflicting positions.

In the first decision, Colon v. Strategic Delivery Solutions, LLC, Case No. A-2378-1714 June 4, 2019), a panel of the Appellate Division considered a trial court order dismissing a class action complaint brought by three drivers who delivered pharmaceutical products and general merchandise to Strategic Delivery Solutions, LLC (SDS) customers. Without deciding whether Gloria Colon and the other plaintiffs fell within the § 1 exemption, the trial court required individual arbitration of their New Jersey wage and hour claims while dismissing their class action complaint and jury demand. Continue Reading

Sixth Circuit Affirms Complex Settlement of FLSA Claims Involving Exotic Dancers

Greg MersolBy Greg Mersol on Posted in Wage and Hour

An FLSA collective action involving exotic dancers is brought in 2008 and settles in 2011. Five years later, the same attorneys file essentially the same case with many of the same dancers as class members against some of the same defendants. And one of those defendants has the name “Déjà vu.” What are the odds?

Whatever the odds are, that’s what happened in Jane Does 1-2 v. Déjà vu Consulting Inc., Case Nos. 17-1801/1802/1827 (6th Cir. June 3, 2019). And in addition to the naming coincidence, the case presents a number of issues of broader importance relating to class action settlement.

Numerous cases have been brought over the employment status of exotic dancers. Often, the dancers are characterized as independent contractors living off of tips paid by customers. Frequently, disputes arrive out of whether the degree of control exercised by the dance clubs is sufficient for them to become employees.  Related issues include entitlement to the minimum wage and challenges to various financial policies, such as tip sharing, mandated by the clubs. In many cases, the club will charge the dancers what is sometimes called a “stage fee” to perform. These were the issues in the first case, Doe v. Cin-Lan, Inc., Case No. 08-CV-12719 (E.D. Mich., July 15, 2011). That case settled in 2011 with the payment of money, but no requirement that the dancers be reclassified as employees. Continue Reading

Location, Location, Location. Washington Federal Court Looks To Where Benefit Plan Was Signed And Negotiated In Agreeing To Transfer ERISA Class Action To Georgia

Gilbert BroskyBy Gilbert Brosky on Posted in ERISA

Much like buying a home, location can mean everything when defending a class action. Therefore, it is common for defendants to try and transfer class actions to what is viewed as a more favorable jurisdiction when there is at least a significant connection with that forum. When this happens, courts apply a largely predictable set of factors and considerations in deciding the motion. Perhaps it should come as no surprise that these factors become a little less intuitive when trying to transfer an ERISA class action, at least according to the recent decision in Mayfield v. ACE American Ins. Co., 18-cv-1695 (W.D. Wash. May 13, 2019). Continue Reading

Title VII’s Charge Requirement Isn’t Jurisdictional, But It Can Still Be Fatal

Greg MersolBy Greg Mersol on Posted in Discrimination, EEOC

Some cases look a lot more important at first glance than what they turn out to be. Case in point, today’s decision in Fort Bend County, Texas v. Davis, Case No. 18-525 (U.S. Sup. Ct. June 3, 2019). The Court’s holding was that Title VII’s charge-filing requirement is not jurisdictional. In the end, however, the holding largely means that the requirement is still a defense, but it is one that must be asserted and pursued by the defendant.

The facts of the case were pretty straightforward. Lois Davis was an IT worker for Fort Bend County who complained of sexual harassment by her supervisor. After his resignation, she accused his successor of retaliating against her and filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC)  complaining of sexual harassment and retaliation. Some time afterwards, she was scheduled to work on a Sunday. After the new supervisor refused her offer to trade shifts with a co-worker so she could attend church services, she was discharged. Davis then wrote “religion” by hand on an EEOC charge intake form, but she never formally amended her charge. After the EEOC issued its notice of right to sue, she filed suit under Title VII, alleging both retaliation and religious discrimination. Continue Reading

Ohio Federal Court Rejects Attempt to Certify Class Against Third-Party Plan Administrator Under ERISA § 502(a)(3)

Gilbert BroskyBy Gilbert Brosky on Posted in ERISA

Employee Retirement Income Security Act (ERISA) claims can potentially involve significant amounts in controversy, and in an effort to broaden the pool of potential defendants, ERISA plaintiffs are often fond of arguing that the Supreme Court’s Harris Trust decision makes a party’s status as an ERISA fiduciary or nonfiduciary irrelevant in determining liability under ERISA § 502(a)(3). The recent case of Duggan v. Towne Properties Group Health Plan, et al, 1:15-cv-623 (S.D. Ohio, Mar. 31, 2019), provides a reminder that fiduciary status can and does still matter and may be a defendant’s ticket out of an ERISA class action. Continue Reading

Recent Decisions Don’t Provide Useful Guidance on Tests for the FAA Exemption of Transportation Workers

John LewisBy John Lewis on Posted in Arbitration, Arbitration Agreements

Sometimes being right is not a virtue, especially when it comes to the Federal Arbitration Act § 1 exemption. We predicted uncertainty after the New Prime v. Oliveira decision and got it. See our Jan. 17, 2019, blog post on the exemption. Indeed, if anything, recent decisions have raised more questions than answers. Part of the problem stems from the fact that in New Prime the parties admitted that Oliveira worked in interstate commerce, so applicable tests for coverage were not considered. See 139 S. Ct. 532, 539 (2019).

On April 23, 2019, District Judge John C. Coughenour of the Western District of Washington ruled on the pending motion to compel arbitration in Rittman v. Amazon.com, Case No. 2:16-cv-01554 (W.D. Wash.), Order of 4-23-19. We previously covered the case in a March 12, 2019, blog post. Continue Reading

SCOTUS Reverses Ninth Circuit on Proper Bases for Class Arbitrations

John LewisBy John Lewis on Posted in Arbitration, Arbitration Agreements

The U.S. Supreme Court, in a 5-4 decision, ruled that arbitration agreements must provide a “contractual basis for concluding that the part[ies] agreed to [class arbitration].” Reversing the Ninth Circuit, Chief Justice John Roberts found not only that the Court had jurisdiction over the case but also that the state law contract construction rule dealing with ambiguity applied by the Ninth Circuit was inconsistent with the Federal Arbitration Act core principle that consent of the parties was required. See Lamps Plus, Inc. v. Varela, No. 17-988 (April 24, 2019).

The Decisions Below

Lamps Plus was subjected in 2016 to a successful phishing attack, during which one of its employees sent copies of current and former employees’ 2015 W-2 forms to a third party. Shortly thereafter, Frank Varela filed a putative class action in California federal court seeking relief for the data breach. Lamps Plus responded by seeking individual arbitration under Varela’s arbitration agreement. Instead, the district court interpreted the arbitration agreement to authorize class arbitration. A divided Ninth Circuit panel affirmed. Continue Reading

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