Greg Mersol

Supreme Court Adopts Strict Construction of Salaried Test, Even for Highly Paid Exempt Employees

By Greg Mersol on February 22, 2023 Posted in Supreme Court

One relatively common misapprehension by employers is that generous wages or popular methods of payment will satisfy the Fair Labor Standards Act (FLSA). On February 22, 2023, the Supreme Court reiterated the need not simply for “fair” employment policies or high wages but for adherence to the specific tests for exempt employees. In Helix Energy … Continue Reading

Illinois District Court Refuses to Certify Class Based on Anti-harassment Policy

By Greg Mersol on January 4, 2023 Posted in Anti-harassment

Most employers today have anti-harassment policies covering race, gender and other types of discrimination to help comply with state and federal antidiscrimination legislation and to take advantage of the affirmative defense described in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). But what … Continue Reading

Third Circuit Reverses Certification of ADA Accommodations Class Based on Retail Store Access

By Greg Mersol on July 12, 2022 Posted in Class Action

Class action disability discrimination cases can be particularly difficult. While there is little question of whether a particular individual is in a protected group in a typical case involving race, gender or age, the question of whether an individual is disabled can be more complex. Further, questions may arise regarding the extent of a disability, whether … Continue Reading

Supreme Court Holds Prejudice Not Required for Waiver of Right to Arbitrate – But Does Little Else

By Greg Mersol on May 23, 2022 Posted in Arbitration

In a much-anticipated opinion, the Supreme Court unanimously held this morning that a party claiming waiver of the right to arbitrate need not show prejudice, in Morgan v. Sundance, Inc., Case No. 21-328 (May 23, 2022). While the holding on this point is clear, the Court very explicitly declined to address a series of related … Continue Reading

Third Circuit Rejects District Court’s Trial-Before-Certification Plan

By Greg Mersol on October 20, 2021 Posted in Class Action, Class Action Litigation, FLSA, Off-the-clock, Rule 23

Years ago, employers argued unsuccessfully that plaintiffs should not be able to pursue so-called hybrid claims pursuing both Rule 23 opt-out classes and Fair Labor Standards Act (FLSA) opt-in collective claims at the same time. They noted that combining the two would create procedural anomalies and that doing so would make case resolution unwieldy. They … Continue Reading

Divided Ninth Circuit Reinstates Part of California’s Anti-Arbitration Law

By Greg Mersol and Joseph S. Persoff on September 22, 2021 Posted in Antitrust, Arbitration, California, Supreme Court, Uncategorized

For many years, state and federal courts in California have opposed arbitration and have manufactured frameworks under which they become unenforceable despite the clear directives of the Federal Arbitration Act (FAA) and countless Supreme Court cases. While a string of Supreme Court cases over the past decade gave employers some respite, the Ninth Circuit has … Continue Reading

Spending Bill Would Place Class Action Waivers in Jeopardy

By Greg Mersol on September 10, 2021 Posted in Arbitration Agreements, Collective Action, FLSA, Supreme Court

Only three years ago, the Supreme Court reversed the holdings of a large number of lower courts and held that class action waivers in arbitration agreements were enforceable. Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018). We blogged about that decision here. With the Supreme Court’s ruling, many employers either adopted such agreements … Continue Reading

Court Refuses to Certify Class for Allegedly Defective Flight Attendant Uniforms – Claims About Uniforms Not Themselves Uniform

By Greg Mersol on August 20, 2021 Posted in Class Action

The United States District Court for the Western District of Wisconsin has refused to grant certification in a two-year-old dispute over uniforms for airline personnel. In Gilbert v. Lands’ End, Inc., Case No. 19-cv-823-jdp (W.D. Wisc. Aug. 18, 2021), Delta Airlines contracted with the Lands’ End clothing company to provide uniforms for some of its … Continue Reading

Sixth Circuit Limits Scope of Putative Nationwide FLSA Collective Actions on Personal Jurisdiction Grounds

By Greg Mersol on August 18, 2021 Posted in Collective Action

Four years ago, in Bristol-Myers Squibb v. Superior Court, 137 S. Ct. 1773 (2017), the United States Supreme Court addressed an effort by plaintiffs to bring 600 product liability claims, mostly by non-Californians, in the form of a mass tort action in California state court. After analyzing the claims, the Supreme Court dismissed the non-California … Continue Reading

District Court Rejects Conditional Certification of FLSA Claims Inserted into Data Breach Class

By Greg Mersol on July 1, 2021 Posted in Conditional Certification, FLSA

Here’s a novel approach: What if you have an “off the clock” case where the court disfavors certification? Can you simply tack them onto claims in another pending class action lawsuit? That was the tactic attempted by the plaintiffs in In Re Wawa, Inc. Data Security Litigation, Civil Action No. 19-6019 (E.D. Pa., May 24, … Continue Reading

Ohio District Court Rejects Multiple Challenges to Electronically Signed Arbitration Agreement

By Greg Mersol on June 29, 2021 Posted in Arbitration Agreements

Following the United States Supreme Court’s decision three years ago in Epic Systems Corp. v. Lewis, courts have increasingly enforced arbitration agreements with class action waivers. We blogged about the Epic Systems decision here. While most courts and attorneys now accept the Epic Systems holdings, challenges are still being made but with generally little success, … Continue Reading

Ninth Circuit Holds That District Court Must Weigh Evidence to Determine Rule 23(b) Predominance

By Greg Mersol on May 4, 2021 Posted in Antitrust

While statistical evidence has long been held to be probative on the issue of potential discrimination, it can also be tricky. Questions often abound regarding the collection of data used for statistical comparisons, the methodology used and the treatment of results. A recent decision from the Ninth Circuit holds that a district court cannot ignore … Continue Reading

Seventh Circuit Decertifies Sexual Harassment Class That Relied on Novel Theory

By Greg Mersol on March 17, 2021 Posted in Class Certification

Sexual harassment of prison staff by prison inmates is a difficult issue. Courts have rightly held that harassment by inmates can be actionable when the employer fails to take reasonable steps to combat it, but prisoners are not employees and are already incarcerated, so they require very different remedies than those generally used in the workplace. … Continue Reading

Florida Court Denies Conditional Certification in Tip Credit Case

By Greg Mersol on February 17, 2021 Posted in Class Certification

Court also rejects ‘fail-safe class’ allegations The restaurant industry has been among the hardest hit during the current pandemic, but that has not prevented plaintiffs from pursuing class and collective action claims against it. A recent case, however, has rejected two fairly common problems inherent in these kinds of cases. In Balassiano v. Fogo De … Continue Reading

Seventh Circuit Finds Class of 37 Does Not Meet Rule 23’s Numerosity Requirement

By Greg Mersol on February 2, 2021 Posted in Rule 23

As numbers go, 37 isn’t as famous as, say, 1 or 13. It’s a prime number, the atomic number of rubidium and the age of the peasant Dennis in the movie Monty Python and the Holy Grail, but not much else. Now, however, it may also have significance as a number too small to meet Rule … Continue Reading

The Fifth Circuit Rejects Two-Stage Conditional Certification Procedure for FLSA Collective Actions

By Greg Mersol on January 15, 2021 Posted in FLSA

Court directs application of a more rigorous and more sensible standard. Much of the current tsunami of wage and hour litigation across the country has been fueled by the use of a two-step procedure in Fair Labor Standards Act (“FLSA”) collective actions that simultaneously facilitates the bringing of such claims and puts unreasonable pressure on … Continue Reading

Eleventh Circuit Upholds Small Fee Award in FLSA Case

By Greg Mersol on December 8, 2020 Posted in FLSA

When is a win not a win? One ace in the hand of plaintiffs’ counsel in Fair Labor Standards Act (FLSA) litigation (as well as claims under Title VII, the Americans with Disabilities Act or the Age Discrimination in Employment Act) is their ability to recover attorney fees should they prevail. While that is, indeed, … Continue Reading

North Carolina Court Rejects Collective Action Based on Regular Rate Issues

By Greg Mersol on September 28, 2020 Posted in Collective Action

In some instances, it’s hard to see what benefit there is to a class action other than for the lawyers. This is particularly true in so-called “regular rate” cases challenging employer perks such as free meals, various kinds of bonuses, or other employee benefits. We’ve commented on these cases previously. A recent case raises these same … Continue Reading

Eleventh Circuit Invalidates Class Action Individual Incentive Awards

By Greg Mersol on September 21, 2020 Posted in Incentive Awards

Yes, you read that right. Class action litigation is fueled largely by the availability of often large attorney fee awards. To get a class action case in the first place, however, attorneys bringing them often entice a potential individual plaintiff into the role of class representative with the prospect of a monetary “incentive award,” usually in the thousands of dollars. Indeed, the … Continue Reading

Missouri District Court Rules on Employment Class Action Procedural Quagmire

By Greg Mersol on August 31, 2020 Posted in FLSA

Res judicata helps cut the Gordian knot Rule 23 and FLSA Section 16(b) can provide myriad benefits to the plaintiffs in class actions, but in some instances the attorneys may resort to procedural runarounds to try to leverage those benefits even further. Courts have been less than receptive to these efforts, as a recent opinion from … Continue Reading

Florida District Court Denies Conditional Certification in ‘Tip Credit’ Case

By Greg Mersol on August 27, 2020 Posted in Class Certification

Tip credit issues are inherently difficult. Section 3(m) of the Fair Labor Standards Act permits an employer to count tips toward a portion of a tipped employee’s wages to meet the minimum wage (and in some instances overtime) requirements of the Act. The Department of Labor, however, has gone back and forth over the requirements for … Continue Reading

Sixth Circuit Sets Out Guidelines for Lodestar Fee Awards in Class Actions

By Greg Mersol on August 18, 2020 Posted in Class Action Litigation

Attorney fee awards are a major driver of class action litigation – both in the employment and other contexts. How they are awarded, and what is “reasonable” has been an ongoing source of contention in many cases. A recent opinion from the Sixth Circuit provides some guidance and also places limits on methodology used by … Continue Reading

D.C. District Court Refuses to Issue Preliminary Injunction Against Alleged Retaliation in Sex Discrimination Class Action

By Greg Mersol on July 29, 2020 Posted in Discrimination

In the 1991 movie “Silence of the Lambs” and the book on which it was based, FBI trainee Clarice Starling is tasked with working with the now-infamous Hannibal Lector to find a serial killer. That movie won a Best Actress Oscar for Jodie Foster as well as Oscars for Anthony Hopkins and the movie’s scriptwriters … Continue Reading

Ninth Circuit Finds No Right of Contribution or Indemnity Under the FLSA

By Greg Mersol on July 6, 2020 Posted in FLSA

Joint or single employer liability has gotten a lot of attention in recent years, where a company is held responsible for the employment obligations of a sufficiently interrelated contractor or corporate entity. Our sister blog, the Employment Law Spotlight, has reviewed many of these issues in detail. See, e.g., our January 13, 2020 blog. But … Continue Reading