Archives: FLSA

Ninth Circuit Affirms Decertification of FLSA Off-the-Clock Case

By Greg Mersol on September 21, 2018 Posted in Collective Action, FLSA

No, that isn’t a typo – it was the Ninth Circuit. Those familiar with collective action litigation are already familiar with the two-step paradigm most courts use to evaluate collective action claims. In the first stage, commonly misnamed “conditional certification,” the court determines whether to authorize notice to the putative class. In doing so, most courts … Continue Reading

And Yes, Epic Systems Applies to Independent Contractors, Too

By Greg Mersol on August 27, 2018 Posted in Epic Systems, FLSA

Unreported opinion will also impact potential counterstrategy Just three months ago, the Supreme Court rendered its decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1632 (2018), in which it rejected perhaps the largest remaining obstacles to the enforcement of class action waivers in arbitration agreements in the employment context, concluding that they did not violate … Continue Reading

Eleventh Circuit Overturns Default Judgment for Failing to Pay Arbitrator’s Fee

By Greg Mersol on August 20, 2018 Posted in FLSA, Wage and Hour

With the Epic Systems case broadly supporting employers’ rights to use arbitration agreements with class waivers, what is now emerging is the result of the necessary trade-off. Employers can, in the wake of Epic Systems, use arbitration agreements to compel the arbitration of putative class claims on an individual basis. But the quid pro quo … Continue Reading

New York District Court Rejects Putative Class Settlement Involving Interns

By Greg Mersol on July 5, 2018 Posted in FLSA

An improper class still isn’t a class even if you settle Here’s something you don’t see every day. A district court has rejected the settlement of a proposed class and collective action – not due to the usual reasons such as excessive attorney fees or other terms, but because the plaintiffs have not shown that … Continue Reading

Illinois District Court Rejects Bid to Hold Jimmy John’s Liable for Franchisees’ Employees

By Greg Mersol on July 3, 2018 Posted in FLSA

Fast food enterprises are frequent targets for claimed wage and hour violations. Because in many instances the places where the plaintiff worked is actually a franchise, the scope of a claim or proposed class may be limited to a few locations, rather than the entire chain. It is therefore not uncommon to see efforts made … Continue Reading

New York District Court Denies Conditional Certification of Class of Café Managers

By Greg Mersol on June 27, 2018 Posted in Class Certification, FLSA

The United States District Court has rendered a decision that is interesting in at least two respects. First, it is a lengthy and thoughtful opinion denying certification of a putative class of 1,100 café managers under the Fair Labor Standards Act (FLSA). Second, the court based the decision, at least in part, on the recent … Continue Reading

Supreme Court Exemption Decision Could Have Broader Repercussions

By David Grant on April 2, 2018 Posted in FLSA

Need FLSA exemptions be narrowly construed? On April 2, the United States Supreme Court issued its decision on the issue of whether the Fair Labor Standards Act’s (FLSA) exemption for those selling or servicing automobiles at car dealerships applied to service consultants. Encino Motorcars, LLC v. Navarro, Case No. 16-1362 (Apr. 2, 2018). Unless you … Continue Reading

Second Circuit Affirms Summary Judgment in Putative Internship Class

By Greg Mersol on December 12, 2017 Posted in FLSA, Wage and Hour

Four years ago, a wave of cases involving unpaid internships looked to be the next “big thing.” As those cases sputtered, however, and employers reduced or eliminated internships, the flood of anticipated litigation never fully materialized. Many targets of these claims simply settled, but a small number of these cases continued to be litigated. In 2012, … Continue Reading

Florida Court Denies Conditional Certification of FLSA Case Involving Restaurant Staff

By Greg Mersol on July 31, 2017 Posted in FLSA

As we’ve noted before, many courts have applied the standard for conditional certification so leniently that in places the requirement of a group of “similarly situated” employees under the FLSA has all but disappeared. So, it’s refreshing to see a case that still requires at least a minimal showing of a similarly situated class – … Continue Reading

Time Spent In Post-Shift Security Checks Once Again Held Not Compensable

By Greg Mersol on June 12, 2017 Posted in FLSA, Retail, Wage and Hour

If you have Amazon Prime, you get free delivery in two business days. If you want to pay extra (whether Amazon Prime or not), you can get your order the next day. So how long does it take for Amazon to get rid of a case the United States Supreme Court says is meritless? Seven … Continue Reading

Third Circuit Rejects Procedural Runarounds to Appeal Decertification of FLSA Collective Action

By Greg Mersol on December 27, 2016 Posted in FLSA

What’s good for the goose … We’ve written many times in this blog about the two-step procedure used by many courts in Fair Labor Standards Act (FLSA) cases in collective actions. The first step is to provide notice to the proposed class and is typically decided under a lenient standard. If the court “conditionally certifies” … Continue Reading

Seventh Circuit Clarifies Rules for Compensating Tipped Employees Performing Non-tipped Work

By Stanley Ball on July 28, 2016 Posted in FLSA

The Fair Labor Standards Act (FLSA) and most states permit restaurants to pay tipped employees a tip-credit rate, an amount less than the minimum wage with the expectation that tips will make up the difference. It goes without saying, however, that the system raises questions, such as how to pay a tipped employee when he … Continue Reading

Collado v. J & G Transport, Inc. – When a Waived Right to Arbitrate is Revived

By John Lewis on April 26, 2016 Posted in Arbitration, FLSA

Some may have thought that once waived, the right to arbitrate is gone forever. No so! The Eleventh Circuit decision in Collado v. J & G Transport, Inc., No. 15-14635 (11th Cir. April 21, 2016) is but the latest example. In that case, Enrique Callado initially filed a collective action under the Fair Labor Standards … Continue Reading

Statistics in Wage and Hour Class Actions: Has Anything Really Changed?

By Greg Mersol on April 25, 2016 Posted in FLSA, Wage and Hour

The probability is “not really” Statistics are kind of a holy grail of class action litigation. Everyone seems to know that they exist, but their understanding is shadowy and the quest to find valid statistical models often proves elusive. Last month’s Supreme Court decision in Tyson Foods, Inc. v. Bouaphakeo, Case No. 14-1146 (Mar. 22, … Continue Reading

New York District Court Grants Summary Judgment for Employer in Gawker Intern Case

By Greg Mersol on April 5, 2016 Posted in Class Certification, FLSA

Litigation Over Interns Dries Up Internship Opportunities The natural and probable consequence of litigation over unpaid internships was that such opportunities would disappear because the risk of litigation for even a legitimate program would outweigh the likely benefit. The result of the much-touted Gawker intern litigation underscores that reality. We’ve blogged about the Gawker intern … Continue Reading

Tyson Foods, Inc. v. Bouaphakeo: The Supreme Court Produces a Narrow Holding Involving FLSA Precedent and Rule 23 Principles

By John Lewis and Dustin Dow on March 25, 2016 Posted in FLSA, Rule 23

Employees have been bringing wage-and-hour collective actions since long before class procedures were officially integrated into the Federal Rules of Civil Procedures in 1966. Section 16(b) of the Fair Labor Standards Act (FLSA) permitted collective actions when it was passed in 1938. In 1946, the Supreme Court in Anderson v. Mt. Clemens Pottery Co., 328 … Continue Reading

The Fifth Circuit Addresses an Issue That Refuses to Die: Who Determines Whether Class or Collective Arbitration Is Available?

By John Lewis on March 23, 2016 Posted in Arbitration, FLSA

We opined on several occasions that cases dealing with a party’s entitlement to class or collective arbitration were a dying breed because of the increased use of class action waivers. And we have been proven wrong by several subsequent decisions. (See our November 11, 2013, March 12, 2015 and September 9, 2015 blog articles … Continue Reading

Court Grants Summary Judgment for Employer in Apple Class Action Seeking Pay for Time Spent in Security Checks

By Greg Mersol on November 12, 2015 Posted in FLSA

Free Choice Tanks Plaintiffs’ Claims Just last year, the Supreme Court held in Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (2014) that employees working at an Amazon.com warehouse were not entitled to overtime pay for time they spent in exit security checks designed to ensure that they were not taking company product … Continue Reading

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