Archives: Overtime Claims

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

Merits Trump Certification Issues in Two Southern District of New York Cases

By Greg Mersol on September 25, 2014 Posted in Class Certification, Independent Contractors, Overtime Claims

Three years ago, the Supreme Court found in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551-52 (2011) that courts “frequently” will need to look to the merits in determining whether certification is appropriate, particularly where the issues of the merits and certification may overlap. Despite this pronouncement, plaintiffs often assert that courts should … 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

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

Employees Seek To Take Bite From Apple (and Urban Outfitters)

By Jeffrey Vlasek on February 25, 2014 Posted in Overtime Claims, Retail, Wage and Hour

Chances are that if you ask someone what they remember from the cult-classic Paul Verhoeven film Total Recall, they’ll recall (among other things) the sequence where Arnold Schwarzenegger attempts to sneak through security. In the sequence, guards watch all of the citizens passing through on a large x-ray screen which depicts their skeletons (in glorious … Continue Reading

Fifth Circuit Applies Fluctuating Work Week in FLSA Misclassification Case

By Greg Mersol on August 30, 2013 Posted in Overtime Claims

You might want to grab a calculator, or at least some strong coffee, before reading this. If an employee or group of employees have been found to have been misclassified as exempt, are they entitled to time-and-a-half for overtime hours, or only the half-time premium? Years ago, the Supreme Court seemed to indicate that in … Continue Reading

California Court Rejects Proposed Settlement Like Audiences Reject The Lone Ranger

By Jeffrey Vlasek on August 7, 2013 Posted in FLSA, Overtime Claims

Does anyone remember when Iron Man 3 came out back at the beginning of May? Does anyone care that it’s the highest grossing movie of 2013? Probably not. And most people probably don’t care that July 2013 went down as the second highest-grossing month of all time, thanks to Despicable Me 2, Monsters University, and … Continue Reading

Sixth Circuit Affirms Jury Verdict for Employer in Mortgage Banker Case

By Greg Mersol on November 2, 2012 Posted in FLSA, Overtime Claims

While most class actions, like most actions generally, tend to settle, they are on occasion tried. In the case of wage and hour litigation, employers can and have prevailed at trial as demonstrated by a case from the Sixth Circuit. In Henry v. Quicken Loans Inc.pdf, Case No. 11-2125 (6th Cir. Oct. 25, 2012), the … Continue Reading

California District Court Refuses Certification of Overtime Class of Retail Store Managers

By Greg Mersol on October 3, 2012 Posted in FLSA, Overtime Claims, Retail, Wage and Hour

Consistent with a trend that started roughly four years ago, a California District Court has refused to certify a class of retail store managers seeking overtime pay under California law on the grounds that individual issues would necessarily predominate. Deane v. Fastenal, Inc.pdf., Case No. 11-CV-0042 YGR (N.D. Cal. Sept. 27, 2012). This case also … Continue Reading

Court Decertifies Overtime Class of Retail Store Managers

By Greg Mersol on October 1, 2012 Posted in Nonexempt Status, Overtime Claims, Retail, Wage and Hour

Nothing succeeds like success. Four years ago, in Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233 (11th Cir. 2008), the Eleventh Circuit upheld a $35+ million jury award against the Family Dollar store discount chain for allegedly misclassifying its store managers as exempt. Predictably, retailers, already a target (no pun intended) of such litigation, … 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

Overtime Pay Class Certified Despite Individualized Issues

By Greg Mersol on June 1, 2012 Posted in Overtime Claims

Authorship credit: S. Jeanine Conley Editor’s Note: Analysis of the Cuevas decision can also be read on Baker Hostetler’s Class Action Lawsuit Defense blog. In Cuevas v. Citizens Financial Group Inc.pdf, Case No. 10-cv-5582 (E.D.N.Y. May 2, 2012), the plaintiff brought an action on behalf of all Assistant Bank Managers (“ABMs”) who had worked at one of … Continue Reading

California Court Proves That They’ll Print Anything These Days With Denial of Decertification in Newspaper Carrier Case

By Jeffrey Vlasek on April 30, 2012 Posted in Independent Contractors, Overtime Claims, Wage and Hour

When James Bond brandishes his Walther PPK and walks into a printing plant, you know one thing is certain – you will be “treated” to at least a half-dozen newspaper puns. And, since this article is about a recent California case involving newspaper carriers, it will, of course, be no different. Ever since Wal-Mart Stores, … Continue Reading

Ninth Circuit Denies Rule 23 Class Certification Based On Actual Duties

By Todd Dawson on March 26, 2012 Posted in Overtime Claims

Is the GOP slipping something into the water supply in San Francisco? Do they know some dirty secrets about some Ninth Circuit judges? Has the whole world gone crazy? The Ninth Circuit’s decision a few days ago in Delodder v. Aerotek, Inc. continues an encouraging—and surprising—trend in Ninth Circuit wage and hour law toward emphasizing … Continue Reading

Plaintiffs Swallow Bitter Pill With Dismissal of Class Breach of ERISA Fiduciary Duty Claim for Alleged Wage and Hour Violations

By Jeffrey Vlasek on March 19, 2012 Posted in ERISA, Overtime Claims

The case of DeSilva v. North Shore-Long Island Jewish Health System, Inc., Case No. 10-CV-1341-JFB-ETB (E.D.N.Y. March 7, 2012), began small, like a lone cough one winter’s morning, before escalating into a full-blown cold, complete with hacking and wheezing. At first there were six plaintiffs working as nurses. After two amended complaints, however, the purported … Continue Reading

Inadvertent ESI Disclosure Of Attorney-Client Communication Waives Privilege In FLSA Collective Action

By Todd Dawson on March 1, 2012 Posted in FLSA, Overtime Claims, Wage and Hour

“Hey, Where’d You Get That Document?” ESI has become one of the most despised three-letter combinations in corporate America (and the lawyers who dutifully serve it). The costs and risks associated with a company’s duty to preserve ESI are a headache of their own, but the dangers in production turn that headache into a full-fledged … Continue Reading

California Appeals Court Rejects Attempt to Try California Misclassification Case by Statistics

By Gilbert Brosky on February 13, 2012 Posted in Meal and Rest Periods, Overtime Claims, Wage and Hour

The California Court of Appeal issued a rare decision in favor of employers last week, when it reversed a class action judgment of $15 million and decertified a class of 260 current and former bank employees who claimed they had been misclassified as exempt and were therefore entitled to meal and rest break premiums. News … Continue Reading

California Supreme Court’s Harris Decision May Become a Helpful Tool in Defeating Class Certification–Or Maybe it Won’t

By Todd Dawson on January 4, 2012 Posted in Class Certification, FLSA, Overtime Claims

An Irritable Pessimist’s View of a Welcome Decision After several years of waiting, the California Supreme Court handed down its long-anticipated decision in Harris v. Superior Court last week. Given the natural-born suspicion held by management-side lawyers toward anything that wanders its way out of the wilderness that is the California courts, it probably comes as … Continue Reading

California District Court Denies Certification of Second Wage and Hour Class in Less than a Month: Early Bird Catches the Worm, but Doesn’t Like the Taste

By Greg Mersol on December 19, 2011 Posted in Overtime Claims, Wage and Hour

Maryland staffing corporation Aerotek Scientific, LLC (“Aerotek”), allegedly required its employees who worked at one of its call centers in California to arrive at work at least ten minutes before the beginning of their shifts to log into their computers and be at the ready to receive calls at the immediate start of their shifts. While … Continue Reading

Putative Class of Pharmaceutical Representatives’ Offensive Collateral Estoppel Argument In Support of Overtime Claim Rejected by Pennsylvania Court

By Scott McIntyre on November 28, 2011 Posted in FLSA, Overtime Claims

The question of the exempt status of pharmacy representatives has spawned numerous class and collective actions against the pharmaceutical industry. A recent case reflects the court’s rejection of a creative attempt to challenge the exempt status of a putative class of drug sales representatives. In Ibanez v. Abbott Laboratories.pdf, No. 09-1406, 2011 WL 5572621 (E.D. … Continue Reading

California District Court Denies Certification of Wage and Hour Class: Court Thwarts Effort to Punish a Good Deed

By Greg Mersol on November 15, 2011 Posted in FLSA, Overtime Claims, Wage and Hour

An employer permits its employees to trade shifts voluntarily. A nice favor, right? Unfortunately, there are claimants ready to assert class action wage and hour claims when the employees’ own decisions create potential overtime issues. In Lessard v. Skywest Airlines, Inc., Case No. 2:11-cv-03769-JHN-VBK (C.D. Cal. Oct. 24, 2011), the plaintiffs were former ticket agents … Continue Reading

Court Denies Conditional Certification of Putative Class of Restaurant Managers And Assistant Managers

By Greg Mersol on November 10, 2011 Posted in FLSA, Overtime Claims, Wage and Hour

As we have commented before, there are no class actions per se under the Fair Labor Standards Act. Rather, the plaintiffs must demonstrate that the proposed class members are “similarly situated.” In making that determination, most courts considering certification of classes under the FLSA now use a two-step procedure. At the first stage, they apply … Continue Reading

California Court Finds Meal and Rest Break Requirements Preempted

By Sabrina Shadi on October 31, 2011 Posted in FLSA, Meal and Rest Periods, Overtime Claims, Wage and Hour

Court Washes Out Meal and Rest Break Claims for Class of Whirlpool Drivers and Installers Tired of the stains those pesky meal and rest break requirements leave on your California operations? If your business is a motor carrier covered by the Federal Aviation Administration Authorization Act of 1994 (“FAAA Act”), some power to help clean … Continue Reading

California District Court Denies Certification of Putative Class of Independent Contractor Strippers

By Holli Hartman on October 19, 2011 Posted in FLSA, Independent Contractors, Overtime Claims, Wage and Hour

COURT: EXOTIC PERFORMER MUST DANCE THE DANCE TO LEAD A CLASS ACTION An exotic dancer’s effort to certify a class of dancers in a minimum wage suit against an adult night club in California hit a bump and ground to a temporary halt in early October after a federal court determined she could not serve … Continue Reading