Archives: FLSA

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

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

The Fifth Circuit Again Considers the ‘Forby’ Case and When the Right To Arbitrate Is Waived Based on an Amended Complaint

By John Lewis on October 8, 2021 Posted in Arbitration, Arbitration Agreements, FLSA

By John B. Lewis As we have said in the past, determining when a party waives its right to arbitrate is never easy and the nuanced standards vary among the circuits. Now a case that has come to the U.S. Court of Appeals for the Fifth Circuit a second time confirms our belief. The Fifth … 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

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

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

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

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

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

Sixth Circuit Addresses RICO and FLSA Claims

By Greg Mersol on July 2, 2020 Posted in FLSA

Successful FLSA plaintiffs will likely receive not only the claimed unpaid overtime or minimum wage, but also liquidated (double) damages and payment of their attorney fees. But what if they want . . . more? Will a RICO claim get them additional funds? That was the question the Sixth Circuit has answered in a pair … Continue Reading

Illinois District Court Decertifies FLSA Collective With 1,600 Opt-Ins

By Greg Mersol on June 29, 2020 Posted in FLSA

Just before the pandemic triggered closings across the country, we identified an Illinois case as a good candidate for discussion. As the pandemic has eased, we’re taking the time now to address issues relating to the decision as to whether an off-the-clock case that has been conditionally certified should be permitted to remain as a … Continue Reading

Second Circuit Upholds Fluctuating Work Week Despite Potential Payroll Issues

By Greg Mersol on June 24, 2020 Posted in FLSA

More than 75 years ago, just four years after the passage of the Fair Labor Standards Act (FLSA), the United States Supreme Court recognized what has now become known as the fluctuating work week (or “FWW”) as an alternative to the strict payment of overtime at time and a half. Overnight Motor Transportation Co. v. Missel, … Continue Reading

Arkansas District Court Reduces Attorney Fees in FLSA Collective Action to $1

By Greg Mersol on June 12, 2020 Posted in FLSA

It’s hard not to express cynicism when discussing attorney fee awards in overtime class and collective actions. Courts have adopted wildly different tests and benchmarks, and different jurisdictions apply very different levels of scrutiny. The availability of fees has fueled the epic growth in Fair Labor Standards Act (FLSA) class and collective litigation. Many of … Continue Reading

Ninth Circuit Finds That Settlement of Individual Claims Moots Class Allegations

By Greg Mersol on June 8, 2020 Posted in FLSA

Why, no, a plaintiff can’t eat his cake and have it, too It is often the case that plaintiffs who cannot proceed as a class will settle their individual claims. But what if they really want an incentive award, or their attorneys really want a class-size fee award? Can they settle the individual claim and then continue to … Continue Reading

Maryland District Court Refuses Conditional Certification of Proposed Class of Grocery Store Managers

By Greg Mersol on April 15, 2020 Posted in FLSA

Grocery stores have taken on special prominence as being on the front lines of the current coronavirus pandemic. Just as that role was becoming apparent, the federal district court in Maryland issued a strong opinion not only denying conditional certification for a class of grocery store managers, but also dismissing many of their claims. In … Continue Reading

Second Circuit Finds That Nurses Are Professionals, Even if They Work for Insurance Carriers

By Greg Mersol on January 30, 2020 Posted in FLSA

Not quite two years ago, the Supreme Court decided the case of Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134 (2018), a case we blogged here. The case itself involved the issue of whether service consultants at auto dealers were exempt from overtime under the FLSA. While the Supreme Court held that they were, … Continue Reading

Seventh Circuit Now Addresses When Notices of Collective Action Can be Given to Employees Who May Have Arbitration Agreements Waiving Their Right to Join

By John Lewis on January 27, 2020 Posted in FLSA

Whether to give notices of a collective action under the Fair Labor Standards Act (FLSA) to employees who may join presents some nuanced and challenging questions for district courts. The court must “respect judicial neutrality and avoid even the appearance of endorsing the action’s merits.” See Hoffmann-LaRoche Inc. v. Sperling, 493 U.S. 165, 171-174 (1989). … Continue Reading

Second Circuit Finds That Rule 68 Can Be Used To Settle FLSA Claims

By Greg Mersol on December 26, 2019 Posted in FLSA

Many litigants in FLSA cases find practical obstacles in settling the matters, particularly when there are disputes regarding what exactly has happened or when the underlying claim turns out to be very small. This process is made more difficult by the judicial interpretation of the FLSA’s enforcement provision, section 16, which permits the Department of … Continue Reading

Louisiana District Court Decertifies FLSA Class of Warehouse Supervisors

By Greg Mersol on December 4, 2019 Posted in FLSA

We’ve noted many times that while employees prevail on most motions for conditional certification under the FLSA, employers tend to prevail on the second stage motion for decertification. A recent case reflects that continuing reality, but also highlights weaknesses in the two-stage paradigm that work to the disadvantage employers irrespective of the merits (or lack … Continue Reading

District Court Refuses Conditional Certification of “Policy to Violate the Policy” Case

By Greg Mersol on August 21, 2019 Posted in FLSA

In collective actions under the FLSA, courts typically apply a lower standard to the first “conditional certification” stage. In some cases, that might be warranted, but in many instances courts will undertake an unduly lenient review and conditionally certify cases that have no business proceeding as a class and have no realistic prospect of surviving … Continue Reading

District Court Decertifies FLSA Collective Action With Independent Contractor Issues

By Greg Mersol on August 9, 2019 Posted in FLSA

We’ve commented many times before that relatively few collective actions survive the “second stage” motion to decertify or, relatedly, an unofficial “third stage” when the trial court actually considers how the matter will be managed at trial. Here is another variation on that theme – an unusual case involving a lender’s claimed involvement in the … Continue Reading

Tennessee District Court Conditionally Certifies ADEA Collective Action

By Greg Mersol on June 14, 2019 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 … Continue Reading

Illinois District Court Decertifies Equal Pay Act Collective Class Involving Physicians

By Greg Mersol on April 24, 2019 Posted in FLSA

Section 16(b) of the Fair Labor Standards Act (FLSA) is the provision that requires those participating in a federal claim for minimum wages or overtime to opt in to the class, making Rule 23 inapplicable. The same enforcement applies to claims under the Equal Pay Act (EPA), 29 U.S.C. Section 206(d). The EPA is itself … Continue Reading

Missouri District Court Decertifies FLSA Class of IT Workers

By Greg Mersol on April 23, 2019 Posted in FLSA

We’ve noted before that while conditional certification motions are often granted, such classes fare far less well at the second decertification stage and just as poorly on the eve of trial. See: “Ninth Circuit Affirms Decertification of FLSA Off-the-Clock Case” from Sept. 21, 2018, and “Ohio District Court Decertifies Class of Health Care Workers in … Continue Reading