Archives: FLSA

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

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