Todd Dawson

Seventh Circuit Fires Warning Shot, USERRA May Require Paid Military Leave

By Todd Dawson on February 11, 2021 Posted in Wage and Hour

In a case that it characterized as one of first impression in the federal courts of appeals, the Seventh Circuit held last week that the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq. (“USERRA”), may, in some circumstances, require employers to provide paid leave to employees absent from work due to … Continue Reading

Fifth Circuit Finds Grievance Settlement Extinguished FLSA Claims

By Todd Dawson on September 30, 2020 Posted in FLSA

The U.S. Court of Appeals for the Fifth Circuit’s recent decision in Stuntz v. Lion Elastomers, LLC, Case No. 19-40336 (Sept. 23, 2020), offers some reassurance to employers that wage and hour issues can be properly (and finally) resolved in grievance settlements. The employer in Stuntz permitted its production employees to clock in as early … Continue Reading

Travel Time Compensable Under California Law Despite Contrary Union Agreement

By Todd Dawson on September 15, 2020 Posted in Wage and Hour

While California’s wage-and-hour rules recognize a number of exceptions for employees subject to a collective bargaining agreement, the California Supreme Court’s denial of review in Gutierrez v. Brand Energy Svcs. of Calif. is a reminder that such exceptions are not without limits. Case No. A154604, review denied 9/9/20. The California wage order at issue in … Continue Reading

Denial of Conditional Certification Highlights Importance of Handbook Policies

By Todd Dawson on August 26, 2020 Posted in Class Certification

A recent decision from the Eastern District of Wisconsin serves as a strong reminder that well-crafted handbook policies can sometimes save the day for employers in proposed Fair Labor Standards Act collective actions. Amandah v. Alro Steel Corp., No. 19-CV-1607-JPS (E.D. Wis. Aug. 21, 2020). The plaintiff in Amandah brought a proposed collective action against … Continue Reading

U.S. Supreme Court Nixes Obama Recess Appointees To NLRB

By Todd Dawson on June 26, 2014 Posted in NLRB

D.R. Horton Ruling May Survive, However With all due respect, Meatloaf, you were wrong. It turns out that two out of three is, in fact, bad. The United States Supreme Court held today that President Obama’s 2012 appointments to the National Labor Relations Board were not valid recess appointments under the United States Constitution. NLRB … Continue Reading

Ninth Circuit Upholds Employment Arbitration Agreement And Class Waiver

By Todd Dawson on June 25, 2014 Posted in Arbitration, NLRB

But Can The Good Guys Avoid A Last Second Goal In This Case? The Ninth Circuit’s decision in Johnmohammadi v. Bloomingdales, Inc., Case No. 12-55578 (9th Cir. June 23, 2014), should have employers feeling as good as the U.S. Men’s Soccer team up through the fourth minute of added time in the second half of … Continue Reading

Employer Loses WARN Affirmative Defenses In Class Action Due To Insufficient Description In Notice

By Todd Dawson on April 16, 2014 Posted in WARN Act

“The Pen Is Mightier Than The Sword…And Verbal Communications During Company-Wide Employee Meetings.” Things seem to be going from bad to worse for defunct law firm Dewey & LeBoeuf. As criminal charges continue to loom for some former Dewey partners, the judge overseeing Dewey’s bankruptcy has now ruled that the firm cannot assert the “faltering … Continue Reading

Sixth Circuit Rejects EEOC’s Expert Evidence In Proposed Pattern Or Practice Class Action Litigation

By Todd Dawson on April 14, 2014 Posted in EEOC

The EEOC learns what it’s like to be the statue and not the pigeon. The EEOC can’t seem to catch a break these days. After a string of recent cases in which the agency has been forced to pay employer attorneys’ fees for bringing frivolous claims, the most recent zinger came from the Sixth Circuit … Continue Reading

Rule 68 Offer That Excludes Individual Claim Does Not Moot Putative FLSA Collective Action

By Todd Dawson on December 12, 2013 Posted in FLSA, Rule 68

“The Last Inch Is The One That Counts” The recent decision in Silva v. Tegrity Personnel Svcs., Inc., Case No. 4:13-cv-00860 (S.D. Tex. 12/5/2013), suggests that some district courts haven’t fully embraced the Supreme Court’s holding in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013). The plaintiff in Silva filed a proposed … Continue Reading

Eleventh Circuit Affirms Employer’s Directed Verdict Based On FLSA Outside Sales Exemption

By Todd Dawson on December 10, 2013 Posted in FLSA, Retail

“I Blew Off My Exempt Duties” Insufficient To Establish Jury Question. Slackers everywhere may have shed a tear in their Doritos on Friday after reading the Eleventh Circuit’s decision in Reyes v. Goya Foods, Inc., Case No. 13-12827 (11th Cir. 12/6/13). The plaintiff in Reyes sought to bring an FLSA collective action against the defendant … Continue Reading

Ninth Circuit Adopts New Standard For Establishing CAFA Jurisdiction Following Standard Fire

By Todd Dawson on September 12, 2013 Posted in Class Action Fairness Act, Wage and Hour

Crow Doesn’t Taste Too Bad….If You Season It Right. AT&T Mobility appears determined to make it onto the Christmas card list of every employer in the United States. In yet another big win for AT&T, the Ninth Circuit recently overturned its own case law and held that a defendant must establish CAFA’s $5 million jurisdictional amount simply by a preponderance of the … Continue Reading

Ninth Circuit Upholds Class Action Waiver, Rejects D.R. Horton

By Todd Dawson on August 23, 2013 Posted in National Labor Relations Act

If You Can’t Beat ‘Em, Join ‘Em In a development as incongruously surprising as Lady Gaga becoming President, the Ninth Circuit has enforced a class action waiver. Richards v. Ernst & Young, Case No. 17530 (August 21, 2013). On its own, that may only have been as shocking as, say, Ralph Nader taking the Oval … Continue Reading

Dukes Of Hazard: Uniform Auto-Deduct Meal/Break Policy Insufficient to Establish 23(a)(2) Commonality

By Todd Dawson on July 17, 2013 Posted in Meal and Rest Periods, Rule 23

The Supreme Court’s Wal-Mart Stores, Inc. v. Dukes opinion has once again played Bo and Luke to a plaintiff’s Boss Hogg. The plaintiffs in Raposo v. Garelick Farms LLC, Case No. 11-11943, D. Mass. (July 11, 2013), were truck drivers who made deliveries out of two locations operated by a dairy distribution company. The company … Continue Reading

That’s A Spicy Meatball!

By Todd Dawson on July 1, 2013 Posted in Antitrust

What Does The Supreme Court’s Decision In Italian Colors Mean For The NLRB’s D.R. Horton Decision? As our readers will no doubt recall, the Supreme Court boldly struck a blow for truth, justice and the American Way a few years ago in its approval of class action waivers in AT&T Mobility v. Concepcion, 131 S. … Continue Reading

Conditional Certification Of Assistant Manager Overtime Class Denied…..For Now

By Todd Dawson on April 5, 2012 Posted in Class Certification, FLSA

No “One-And-Done” Rule For FLSA Collective Actions Perhaps it’s a tad unrealistic, but here’s hoping that John Calipari’s one-and-done recruiting strategies start influencing FLSA jurisprudence now that he’s finally won a national championship. From an employer’s perspective, it’s hard to tell whether the recent denial of conditional certification in Jenkins v. The TJX Companies is … Continue Reading

In Through the Out Door: Third Circuit Says FLSA Collective Actions Not Incompatible With Rule 23 State Law Class Actions

By Todd Dawson on April 2, 2012 Posted in FLSA

In a decision that will thrill readers of all ages with its scintillating recitation of the Portal-to-Portal Act’s legislative history, the Third Circuit has held that there is no inherent incompatibility between the opt-in mechanism of Section 16(b) of the Fair Labor Standards Act (that’s 29 U.S.C. 216(b) for those of you keeping score at … Continue Reading

Ninth Circuit Denies Rule 23 Class Certification Based On Actual Duties

By Todd Dawson on March 26, 2012 Posted in Overtime Claims

Is the GOP slipping something into the water supply in San Francisco? Do they know some dirty secrets about some Ninth Circuit judges? Has the whole world gone crazy? The Ninth Circuit’s decision a few days ago in Delodder v. Aerotek, Inc. continues an encouraging—and surprising—trend in Ninth Circuit wage and hour law toward emphasizing … Continue Reading

Supreme Court Denies Certiorari Of Second Circuit Opinion Requiring Class-Based Arbitration

By Todd Dawson on March 26, 2012 Posted in Class Certification

“Stolt Who . . . .?” If you’ve heard a rushing sound in your ears the last few months, it may be the rug being pulled out from under employers who thought they finally had clarity on the legal status of class arbitration. (Or, it may be a serious medical condition, so you should probably … Continue Reading

Inadvertent ESI Disclosure Of Attorney-Client Communication Waives Privilege In FLSA Collective Action

By Todd Dawson on March 1, 2012 Posted in FLSA, Overtime Claims, Wage and Hour

“Hey, Where’d You Get That Document?” ESI has become one of the most despised three-letter combinations in corporate America (and the lawyers who dutifully serve it). The costs and risks associated with a company’s duty to preserve ESI are a headache of their own, but the dangers in production turn that headache into a full-fledged … Continue Reading

California Supreme Court’s Harris Decision May Become a Helpful Tool in Defeating Class Certification–Or Maybe it Won’t

By Todd Dawson on January 4, 2012 Posted in Class Certification, FLSA, Overtime Claims

An Irritable Pessimist’s View of a Welcome Decision After several years of waiting, the California Supreme Court handed down its long-anticipated decision in Harris v. Superior Court last week. Given the natural-born suspicion held by management-side lawyers toward anything that wanders its way out of the wilderness that is the California courts, it probably comes as … Continue Reading

If At First You Don’t Succeed….Your “Plan B” Will Probably Fail, Too

By Todd Dawson on August 10, 2011 Posted in FLSA, Overtime Claims

Having already struck out on a curveball they thought was a fastball over the middle of the plate, Schering Corp. is now 0 for 2 following the latest ruling from the Connecticut federal district court in Kuzinski et al. v. Schering Corp.pdf., Case No. 3:07-cv-0233-JBA (D. Conn. August 5, 2011). The case began over four years ago, when Schering’s sales reps … Continue Reading

California Appellate Court Sends Mixed Signals in Affirming Denial of Class Certification.

By Todd Dawson on April 29, 2011 Posted in Class Certification, Overtime Claims, Wage and Hour

The Second Appellate District in California recently affirmed a trial court’s refusal to certify a class of store managers in Mora, et al. v. Big Lots Stores, Inc.pdf., Case No. B221949 (April 18, 2011). Whether this case should be treated as a welcome sign for employers, however, remains an enigma wrapped inside a riddle (served … Continue Reading

Retiree Class Action Remanded To State Court For “Untimely-ish” Removal

By Todd Dawson on March 21, 2011 Posted in ERISA

A wise man (who we’d never heard of until searching for witty quotes with which to open this article) once said, “Procrastination is the bad habit of putting off until the day after tomorrow what should have been done the day before yesterday.” The UAW will undoubtedly attest to this notion following the decision earlier this year … Continue Reading

Sanctions Recommended For Opt-In Plaintiffs In FLSA Collective Action

By Todd Dawson on October 14, 2010 Posted in Class Certification, Conditional Certification, FLSA, Wage and Hour

“Hey, Judge, You Don’t Understand……I Just Wanted The Money!” About two dozen people who opted into an FLSA collective action in Nevada federal court may soon be reminded that the pinch is usually in the fine print. Magistrate Judge Peggy A. Leen recommended sanctions against these individuals after they refused to respond to discovery. In … Continue Reading