Gilbert Brosky

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Dealing With COVID-19 In Your Workplace Without Inviting Future Class Actions

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in Class Action Litigation
You don’t need us to tell you that it’s not an easy time to be an employer.  With ever growing concerns over employee safety, business operations, costs, and complying with new and rapidly evolving legislation as a result of COVID-19, getting your business through the next day can seem overwhelming enough.  However, it is important … Continue Reading

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

Photo of 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 … 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

Photo of 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 … Continue Reading

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

Photo of 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 … Continue Reading

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

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in Class Action Fairness Act, Independent Contractors
Challenging 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 … Continue Reading

Ding-Dong, Yard-Man Is Dead! Supreme Court Decision in Tackett a Huge Win for Employers in the Retiree Healthcare Arena

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in Benefits
On Monday, a unanimous United States Supreme Court issued its decision in M & G Polymers USA, LLC v. Tackett, Supreme Court Case No. 13-101, vacating and remanding the Sixth Circuit’s holding that a group of retirees was entitled to lifetime healthcare benefits per the terms of various collective bargaining agreements.  In doing so, the … Continue Reading

Ohio District Judges Puts an End to Nationwide FLSA Collective Action Brought Against Lowe’s

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in Collective Action, FLSA, Retail
While we have occasionally bemoaned the lenient conditional certification standard in FLSA collective actions, as the recent case of Triggs v. Lowe’s Home Centers, Inc., No. 1:13-cv-1897 (N.D. Ohio Aug. 19, 2014) shows, not all courts are willing to rubberstamp collective actions onto the second stage of litigation. The six plaintiffs in Triggs were former … Continue Reading

Another Federal Court Decertifies FLSA Collective Action of Hospital Workers Challenging Auto-Deduct Policy

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in Collective Action, FLSA, Meal and Rest Periods
We have previously discussed that, while medical providers have become a common target of plaintiffs asserting wage and hour claims arising out of so-called “auto-deduct” policies, more and more courts are realizing that the inherently fact-specific nature of these lawsuits make class treatment very difficult.  See our posts from June 23, 2014, and September 17, … Continue Reading

Federal Courts Continue To Find Claims Adjusters Exempt

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in FLSA
We have previously discussed how, over the past 10+ years, courts have increasingly recognized that insurance claims adjusters are exempt under the Fair Labor Standards Act (FLSA).  The recent cases of Estrada v. Maguire Ins. Agency, Inc., 12-cv-604 (E.D. Penn. Feb. 28, 2014) and Locke v. Am. Bankers Ins. Co. of Florida, 12-cv-1430 (E.D. Cal. … Continue Reading

Federal Court In New York Decertifies FLSA Collective Action Of 1,000 Hospital Workers Challenging Auto-Deduct Policy

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in Conditional Certification, FLSA
Over the past several years, medical providers in particular have been beset by wage and hour claims arising out of so-called “auto-deduct” policies.  A recent case, arising out of the Eastern District of New York, a jurisdiction that has generally been friendly to plaintiffs in this arena, suggests that such claims may ultimately fail. In … Continue Reading

Massachusetts Supreme Court Enforces Class Action Arbitration Waiver

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in Arbitration
On Second Thought… Court Begrudgingly Reverses Its Own June 2013 Decision On Class Arbitration In Light of SCOTUS’s Amex Decision Eight days prior to the Supreme Court’s decision in American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013) (“AMEX”) (which we blogged here), the Massachusetts Judicial Court held that the Federal Arbitration Act … Continue Reading

Federal Court Decertifies Wisconsin FLSA Class Of Meat Processing “Kill Department” And “Boning Department” Employees

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in FLSA, Wage and Hour
We have blogged a number of cases in which courts have conditionally certified FLSA actions, only to later decertify them when the specter of trial begins to loom.  While FLSA decertification cases often involve office or sales employees, as a federal court in Wisconsin recently demonstrated, efficiently resolving FLSA collective actions at trial can quickly … Continue Reading

FAAAA Keeps “Trucking” Through California Meal and Rest Break Laws

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in FLSA
We have previously wrote about the recent success of California trucking companies defeating California meal and rest break claims by arguing that the laws are preempted by the Federal Aviation Administration Authorization Act (FAAAA). Specifically, Esquivel v. Vistar Corp., No. 2:11–cv–07284–JHN–PJWx, 2012 WL 516094 *6 (C.D. Cal. Feb. 8, 2012) (discussed here), and Dilts v. … Continue Reading

California Appeals Court Finds Plaintiffs’ Counsel Inadequate, Upholds Denial of Class Certification Motion

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in Meal and Rest Periods, Wage and Hour
It’s bad enough that a plaintiff’s attorney loses a motion to certify a class – it must be even worse when the reason the motion is denied is the attorney’s own failure to plead his case properly.  A recent California court of appeals decision affirmed the denial of a California meal and rest break class … Continue Reading

California Appeals Court Rejects Attempt to Try California Misclassification Case by Statistics

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in Meal and Rest Periods, Overtime Claims, Wage and Hour
The California Court of Appeal issued a rare decision in favor of employers last week, when it reversed a class action judgment of $15 million and decertified a class of 260 current and former bank employees who claimed they had been misclassified as exempt and were therefore entitled to meal and rest break premiums.  News … Continue Reading

Federal Court in New Jersey Decertifies FLSA Class of 1,500 Home Depot Assistant Managers

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in FLSA, Overtime Claims, Wage and Hour
A federal court in New Jersey recently decertified an FLSA class of 1,500 Home Depot merchandising assistant store managers (“MASMs”) who claimed they were misclassified as exempt executive employees.  (Aquilino v. Home Depot, U.S.A., Inc.pdf., No. 04-04100 (D. N.J. Feb. 15, 2011).  The court determined that because the job responsibilities and duties varied from MASM … Continue Reading

Second Circuit Affirms Denial of Class Certification for Hertz Station Managers and Provides Guidance on FLSA Certification Standard

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in Class Certification, Conditional Certification, FLSA, Nonexempt Status, Overtime Claims, Rule 23, Wage and Hour
On October 27, 2010, the Second Circuit affirmed a federal court’s refusal to certify a proposed class of Hertz Station Managers allegedly denied overtime under New York law.  (Myers v. Hertz Corp., No. 08-1037 (2d Cir. Oct. 27, 2010)).  In doing so, the court addressed the potential difficulties of certifying Rule 23 overtime exemption cases … Continue Reading

Class Decertified in Case of Former Sales Representatives Asserting ERISA Claims

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in ERISA
A federal court in New York decertified a class former sales representatives who claimed that Defendant Linvatec Corp. violated ERISA when it denied severance benefits after the division where the representatives worked was outsourced. Thompson v. Linvatec Corp., No. 6:06-CV-00404 (N.D.N.Y. 6/22/2010). After reviewing the plan documents, the court narrowed the original class definition of … Continue Reading

Sixth Circuit Holds Class Members’ ERISA Claims Accrued When They Knew Their Benefits Changed

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in ERISA
The Sixth Circuit recently reversed an injunction that required Caterpillar to pay lifetime health care costs to a subclass of 275 former employees upon finding the subclass members’ ERISA claims were time-barred.  Winnett v. Caterpillar, Inc., No. 06-00235 (6th Cir. 6/22/2010). The plaintiffs filed their lawsuit on March 28, 2006 and claimed Caterpillar breached a … Continue Reading

Federal Court in New York Denies Class Certification of Independent Contractors’ Misclassification Claim

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in Independent Contractors, Wage and Hour
On June 16, 2010, a federal court in New York held that a group of newspaper delivery drivers who claimed they were wrongfully misclassified as independent contractors under New York law could not pursue their claims as a class action. Edwards v. Publishers Circulation Fulfillment Inc., No. 09 Civ. 4968 (S.D.N.Y. 6/16/10).  In an effort to … Continue Reading
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