Archives: Off-the-clock

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

California District Court Denies Certification of Off-the-Clock Case

By Greg Mersol on February 6, 2020 Posted in Off-the-clock

We’ve commented in the past that off-the-clock cases can make poor candidates for class certification, particularly when the employer’s policies require that employees perform work only while clocked in. A recent case involving a decade-old dispute again illustrates the basic problems with these kinds of claims. In Troester v. Starbucks Corp., Case No. CV 12-07677-CJC(PJWx) … Continue Reading

Third Circuit Finds Multiple Problems With Certification of Off-the-Clock Claims

By Greg Mersol on January 8, 2020 Posted in Off-the-clock

A recent case from the Third Circuit casts a spotlight on many of the problems inherent in so-called off-the-clock claims for overtime. In Ferreras v. American Airlines, Case No. 18-3143 (3d Cir. Dec. 24, 2019), the plaintiffs claimed that various employer time-keeping policies resulted in employees not being paid for all hours worked. One was … Continue Reading

Ninth Circuit Undermines Use of Time Studies in Disposing of Wage and Hour Claims in California

By Greg Mersol on August 8, 2019 Posted in Off-the-clock

Two years ago, we blogged a pair of cases with similar fact patterns and outcomes involving the successful use of time studies (See our October 13, 2017 and October 16, 2017 blog posts). In both cases, shoe retailers required employees to undergo brief security checks before leaving the store. The employees in both cases brought Rule 23 … Continue Reading

California Off-the-Clock Case Involving Independent Contractors Crumbles

By Greg Mersol on January 9, 2019 Posted in Independent Contractors, Off-the-clock, Rule 23

Extensive expert report still fails to establish fairness and manageability for trial. A growing number of courts are questioning classwide proof in off-the-clock cases, and those examining expert testimony in such matters are increasingly coming to the conclusion that they cannot be fairly managed for trial. We’ve blogged this issue several times (see, for example, … Continue Reading

Off-the-Clock Cases Stumble

By Greg Mersol on April 9, 2018 Posted in Off-the-clock

In virtually every case, so-called off-the-clock disputes come down to the situations of individuals rather than classwide conduct. An employee may claim that a night supervisor told them not to record time after midnight. An individual employee may construe criticism that they are working too slowly as an admonition not to record time. Employees may … Continue Reading

Minnesota Court Cuts Proposed Attorney Fee Award From $3.2 Million to $600,000 in Off-the-Clock Case

By Greg Mersol on February 7, 2018 Posted in Off-the-clock

In 2014, five law firms brought a claim for alleged off-the-clock work. As discovery revealed, the claims all arose out of conduct involving a single shift supervisor at a single restaurant, and the conduct was disputed at that. Although the allegations related to a low-level supervisory employee, the plaintiff firms then spent considerable time and expense … Continue Reading

Another Off-the-Clock Case Felled by Time Study

By Greg Mersol on October 16, 2017 Posted in Off-the-clock

Last week, we discussed the decision of the Northern District of California in Rodriguez v. Nike Retail Services, Inc., Case No. 14-cv-01508-BLF (N.D. Cal. Sept. 12, 2017), in which the employer’s use of a time study resulted in summary judgment being granted against the entire class in an off-the-clock case involving post-shift bag searches. That court … Continue Reading

Time Study Kills Off-the-Clock Claim

By Greg Mersol on October 13, 2017 Posted in Off-the-clock, Overtime Claims

In many cases, particularly in light of last year’s decision in Tyson Foods, Inc. v. Bouaphakeo, it is the plaintiff who tries to use statistical evidence in an off-the-clock case to estimate damages (we blogged the Tyson Foods decision here. But that same data may not only be used by the employer but also can … Continue Reading

Illinois Appellate Court Reverses Certification in Off-the-Clock Case

By Greg Mersol on September 26, 2017 Posted in Off-the-clock, Wage and Hour

With many of the most common sources of overtime claims being exhausted (e.g., assistant manager cases), plaintiffs are bringing off-the-clock cases in increasing numbers. While employers should certainly pay nonexempt employees for the hours they work, these claims are being asserted based on ever-more vague allegations. The benefit to the plaintiffs (or their attorneys) is … 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

Russell v. Citigroup Inc. – Language in Revised Arbitration Agreement Torpedoes its Application to Pending Class Action

By John Lewis on April 15, 2014 Posted in Arbitration, Off-the-clock, Wage and Hour

A Sixth Circuit panel found the text of an updated arbitration agreement indicated it did not apply to a wage and hour class action already pending when the agreement was signed. Russell v. Citigroup, Inc., Case No. 13-5994 (6th Cir. April 4, 2014). Keith Russell had worked at a Citicorp call center in Florence, Kentucky … Continue Reading

California District Court Rejects FLSA Settlement Due to 78% Fee Award

By Greg Mersol on December 18, 2013 Posted in FLSA, Off-the-clock, Wage and Hour

. . . but is the problem the courts’ use of percentages? Without settlements, class action litigation would likely grind the work of our nation’s courts to a halt. One impediment, however, to settlement in many cases is the amount of attorney fees. Particularly in smaller cases, or cases involving relatively minor alleged violations (e.g. … Continue Reading

Pennsylvania District Court Denies Certification Of Off-The-Clock Case (Again)

By Greg Mersol on June 7, 2013 Posted in Meal and Rest Periods, Off-the-clock, Wage and Hour

“If at first you don’t succeed, try, try, again,” or so the adage goes. A recent case suggests that may not always be the right strategy or, more apropos to this blog, that off-the-clock cases make poor fodder for class action claims. In Hernandez v. Ashley Furniture Industries, Inc., Civil Action No. 10-5459 (E.D. Pa. … Continue Reading

Missouri Court Denies Conditional Certification Of Off-The-Clock Case

By Greg Mersol on February 25, 2013 Posted in FLSA, Off-the-clock, Wage and Hour

In some respects, one of the most difficult types of wage and hours lawsuits are so-called “off-the-clock” cases in which the employer has promulgated lawful time-keeping and compensation policies, but the plaintiffs contend that they were somehow discouraged from recording their time. These cases are almost impossible to handle on a class-wide basis because, virtually … Continue Reading

Ohio District Court Denies Conditional Certification In FLSA Case

By Greg Mersol on February 18, 2013 Posted in FLSA, Off-the-clock, Wage and Hour

We’ve commented before that while most courts apply a fairly lenient standard at the “conditional certification” phase of Fair Labor Standards Act collective action litigation, plaintiffs tend to have a harder time in so-called “off-the-clock” cases. A recent decision from the Southern District of Ohio reflects that obtaining conditional certification can also be difficult where … Continue Reading

Court Denies Conditional Certification of Class of Debt Collectors

By Greg Mersol on December 19, 2012 Posted in Class Certification, Off-the-clock

If someone with too much time on their hands tried to catalogue all of the decisions regarding conditional certification of proposed FLSA class actions, they would likely find that while plaintiffs prevail at this stage more likely than not, the employer’s chances improve either when (1) the claims are for off-the-clock time; or (2) the … Continue Reading

Texas Court Denies Conditional Certification of Proposed FLSA Class of Loan Processors

By Greg Mersol on September 18, 2012 Posted in FLSA, Off-the-clock, Overtime Claims

While many courts apply a lighter standard for the conditional certification of putative FLSA classes, employers tend to prevail more often on so-called “off-the-clock” cases, as a recent case from the Southern District of Texas demonstrates. In Griffith v. Wells Fargo Bank N.A.pdf., Case No. 4:11-DV-1440 (S.D. Texas), the plaintiff contended that the employer required … Continue Reading

Court Decertifies FLSA Collective Action Against IBM

By Greg Mersol on March 13, 2012 Posted in Class Certification, FLSA, Off-the-clock

We’ve commented before that employers defending collective actions under the FLSA generally fare far better on a motion to decertify than one for conditional certification, and a recent case reflects that fact. In Seward v. International Business Machine Corp.pdf., Case No. 08-CV-3976 (S.D. N.Y., March 9, 2012), the plaintiffs sought to represent a class of … Continue Reading

Third Time Isn’t the Charm When Court Refuses to Grant Certification of a State Law Opt-Out Class

By Jeffrey Vlasek on June 6, 2011 Posted in FLSA, Off-the-clock, Rule 23, Wage and Hour

There’s a saying in Hollywood – “The last sequel is the one that doesn’t make any money.” Unfortunately for moviegoers, too often a franchise is exhausted beyond its foreseeable lifespan by a studio looking to cash in on characters one last time before the end, despite an audience’s waning interest in the series. Thus, instead … Continue Reading