Archives: FLSA

Sixth Circuit Grants Summary Judgment as to Class, Based on FLSA Agriculture Exemption

By Greg Mersol on October 5, 2015 Posted in FLSA

Is the saying “fish or cut bait” dead? If you are ever in need of sleep, pull out your copy of the U.S. Code and traipse through the exemptions contained in section 13 of the FLSA, 29 U.S.C. § 213. We’re all familiar with the so-called white-collar exemptions for administrative, executive, and professional employees, as … Continue Reading

DOL Memo Provides Script for FLSA Collective Actions Alleging Independent Contractor Misclassification

By Todd Lebowitz on July 16, 2015 Posted in FLSA, Independent Contractors

The all-time best The Far Side cartoon (based on an unscientific survey, sample size of me) is the one with two deer standing in the forest, one with a red circular target imprinted on its chest. The other deer says, “Bummer of a birthmark, Hal.” Poor Hal. Blessed with the ability to walk upright, but … Continue Reading

Supreme Court Agrees to Hear Case Addressing Scope of Wage and Hour Class and Collective Actions

By Greg Mersol on June 10, 2015 Posted in Collective Action, FLSA, Retail, Wage and Hour

It’s hard enough to predict what the Supreme Court will do on a given case even after it has been briefed and oral argument has been heard. It’s even harder when all we have is the decision accepting certiorari, but this one is important enough to note. The Supreme Court has now accepted certiorari in a … Continue Reading

Video Interview: Discussing Social Media and Class Actions with LXBN TV

By John Lewis on April 28, 2015 Posted in Class Certification, Collective Action, FLSA

Following up on my recent post discussing the use of social media for class action notices in a lawsuit filed against Gawker Media, I had the opportunity to discuss the subject with Colin O’Keefe of LXBN. In the interview, I explain what’s happening in this specific case and how it’s laid some ground rules for the … Continue Reading

Opalinski v. Robert Half International, Inc. — A Footnote in a Prior Opinion Doesn’t Signal the Supreme Court’s Willingness to Resolve Who Decides the Availability of Class Arbitration

By John Lewis on March 12, 2015 Posted in Arbitration, FLSA

After reading the Supreme Court’s opinion in Oxford Health Plans, LLC v. Sutter, 133 S. Ct. 2064 (2013), some might have concluded that the Court was ready to resolve who determines the availability of class arbitration court or arbitrator — in the right case. See 133 S. Ct. at 2068 n.2. But on March 9, … Continue Reading

Unanimous Supreme Court Finds Security Screening Time NOT Compensable

By Greg Mersol on December 9, 2014 Posted in FLSA, Retail, Wage and Hour

Security screening has become more common over the past decade, both to promote security for some employers and to deter employee theft for others. A growing issue in wage and hour law, at least until this morning, was whether the time spent in that screening was compensable under the Fair Labor Standards Act. In Integrity … Continue Reading

Nevada Supreme Court Finds Class of Strippers Were Employees

By Greg Mersol on December 3, 2014 Posted in FLSA, Independent Contractors, Wage and Hour

Given the extensive use of euphemisms in the exotic dancing trade, we’ll apologize in advance for any unintended puns. We’ve written on the issue of the classification of exotic dancers or strippers in the past [April 8, 2011, October 19, 2011, November 21, 2012], but the question continues to ripple through the courts. While the … Continue Reading

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

By Gilbert Brosky on November 6, 2014 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

By Gilbert Brosky on October 16, 2014 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

Court Sends Plaintiffs Back to the Locker Room Unhappy When It Denies Conditional Certification

By Jeffrey Vlasek on September 29, 2014 Posted in Conditional Certification, FLSA

In January 2014, NFL Commissioner Roger Goodell raised eyebrows (and ire) when he announced that the league was considering eliminating the extra point after a touchdown. As Goodell put it, “the extra point is almost automatic,” given that it is kicked from the twenty yard line, and it is exceptionally rare that a professional NFL … Continue Reading

U.S. Open Umpires and Linesmen Are Independent Contractors, Court Rules

By Todd Lebowitz on September 24, 2014 Posted in FLSA, Independent Contractors, Overtime Claims

In an opinion that disappointingly failed to take advantage of countless pun opportunities, a federal judge in New York otherwise got it right, ruling that the United States Tennis Association properly classified U.S. Open tennis officials as independent contractors, not employees. Meyer v. United States Tennis Ass’n, No. 1:11-cv-6268 (S.D.N.Y. Sep. 11, 2014). The lawsuit, … Continue Reading

Minnesota District Court Rejects Nationwide Scope and Conditionally Certifies Class of One Chipotle Store

By Greg Mersol on September 18, 2014 Posted in Conditional Certification, FLSA, Retail

Employees win most motions for conditional certification under the FLSA, with many courts declining to perform a probing analysis at that stage. A recent case from the District of Minnesota, in which the court still applied a deferential standard, had the unusual result that the court granted conditional certification as to a single Chipotle store … Continue Reading

Third Circuit Affirms Dismissal of Class Allegations for Vague Pleading

By Greg Mersol on September 17, 2014 Posted in FLSA

“’Twas brillig, and the slithy toves Did gyre and gimble in the wabe: All mimsy were the borogoves, And the mome raths outgrabe.” Whenever I see the names of the Iqbal and Twombly pleading cases, I can’t help but feel that the names were clipped from lost lines of Lewis Carroll’s Jabberwocky poem, perhaps as … Continue Reading

New York District Court Conditionally Certifies Class of Interns

By Greg Mersol on August 20, 2014 Posted in Collective Action, Conditional Certification, FLSA

A Blog About Bloggers Have you read any of the following lately? “Chinese Government Fans the Flames of the Ebola Zombie Rumors” “Arrested for Marijuana, Jackie Chan’s Son Could Face Execution” “Who is Dumpling All These Tuxedo Cats at a California Animal Shelter?” These are all recent headlines from various blogs run by Gawker Media … Continue Reading

Court Rejects Pseudo-Expert Reports and Refuses to Certify Off-the-Clock Case

By Greg Mersol on August 15, 2014 Posted in Class Certification, FLSA, Off-the-clock

Off-the-clock cases involving call centers have been in vogue for a number of years despite lingering issues regarding whether they can truly be resolved on a class-wide basis. A recent case from the District of Maryland, Faust v. Comcast Cable Communications Management, LLC, Civil Action No. WMN-10-2336 (July 15, 2014), suggests that they cannot. Further, … Continue Reading

Third Circuit: Availability of Classwide Arbitration is an Issue for the Courts – Not Arbitrators – Unless the Parties Agreed Otherwise

By Joel Griswold on August 1, 2014 Posted in Arbitration, Collective Action, FLSA

Wednesday, the Third Circuit held that the determination of whether an agreement allows classwide arbitration is a question of arbitrability for the courts “unless the parties unmistakably provide otherwise.” Opalinski v. Robert Half International Inc., Case No. 12-4444 (3d Cir. July 30, 2014). In Opalinski, former Robert Half International, Inc. (RHI) employees filed a putative … Continue Reading

U.S. Supreme Court Refuses to Hear Petition that Proceeding as a Collective Action Under the FLSA is a Non-Waivable Substantive Right

By Joel Griswold on July 2, 2014 Posted in Collective Action, FLSA

In the last week, we have seen several significant decisions from the U.S. Supreme Court. On Monday, however, the Court made a noteworthy “non-decision” by declining a petition for certiorari that raised the question of whether a collective action under the Fair Labor Standards Act is a non-waivable, substantive right. In Walthour v. Chipio Windshield … Continue Reading

Federal Courts Continue To Find Claims Adjusters Exempt

By Gilbert Brosky on July 1, 2014 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

By Gilbert Brosky on June 23, 2014 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

Interns Win One, Lose One, In Having Misclassification Cases Conditionally Certified In New York

By Greg Mersol on June 18, 2014 Posted in Class Certification, FLSA, Rule 23

There has been a great deal of coverage involving litigation by interns against various media and entertainment companies in New York. We won’t recount the many articles, blogs, and discussions about this issue. If you need a quick summary of the law, the U.S. Department of Labor, in its Fact Sheet # 71, sets forth … Continue Reading

Eighth Circuit Affirms Summary Judgment On Overtime Claims For Class of Tax Professionals

By Greg Mersol on May 22, 2014 Posted in FLSA, Overtime Claims, Rule 23

Relatively few FLSA cases are certified and then reach a court of appeals on the merits, but that recently happened before the Eighth Circuit. In Petroski v. H&R Block Enterprises, LLC, Case No. 13-2076 (8th Cir. May 2, 2014), the plaintiffs were tax preparers who worked for H&R Block. They brought suit under the FLSA … Continue Reading

Florida District Court Rejects ERISA Claims Premised on Alleged FLSA Violations

By Greg Mersol on May 9, 2014 Posted in ERISA, FLSA, Retail, Rule 23

Plaintiffs in most class and collective actions try to plead their claims in such a way as to exert the maximum pressure against the employer. In some instances, that raises the issue of whether the plaintiff should assert one, clear claim or several. Having only one claim places the issues more starkly, but oftentimes plaintiffs … Continue Reading

Eleventh Circuit Refuses to Enforce Post-Suit Arbitration Agreements Based upon Employer Misconduct

By Greg Mersol on April 4, 2014 Posted in Arbitration, FLSA, Retail

The British have a phrase “too clever by half” to describe complex schemes that ultimately won’t work. We all know from cases such as Concepcion, Stolt-Nielsen, Italian Colors, and their progeny that arbitration agreements are far more likely to be enforced today than only a year or two ago, particularly in the class action context. … Continue Reading