Archives: Overtime Claims

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Second Circuit Finds FLSA Collective Actions and State Law Class Actions Compatible

One of the hottest topics in class/collective action litigation this year has been the availability of both an FLSA collective action and a state law class action in the same suit. We’ve already written several times about some of these cases, with a distinct difference in approach and outcome among the various courts. Some courts … Continue Reading

Western District of Pennsylvania Decertifies Funeral Home Worker Class and Reminds Plaintiffs They Can’t Take It With Them

Fair warning to our readers – most of the puns in this article will likely be dead on arrival. It goes without saying that for most of us, the last place we’re likely to be found (literally and figuratively) is inside of a funeral home. For the plaintiffs in Prise v. Alderwoods Group, Inc., Case … Continue Reading

If At First You Don’t Succeed….Your “Plan B” Will Probably Fail, Too

Having already struck out on a curveball they thought was a fastball over the middle of the plate, Schering Corp. is now 0 for 2 following the latest ruling from the Connecticut federal district court in Kuzinski et al. v. Schering Corp.pdf., Case No. 3:07-cv-0233-JBA (D. Conn. August 5, 2011).  The case began over four years ago, when Schering’s sales reps … Continue Reading

The Southern District of New York Denies Conditional Certification of Proposed Overtime Class of Store Managers

Plaintiff Given a Bitter Pill to Swallow in Vitamin Shoppe Just as Harry Potter or Transformers will rule over the summer box office, the Supreme Court’s decision in Wal-Mart v. Dukes will undoubtedly reign supreme over the employment law class and collective action discussions for the summer of 2011.  But even amidst the big-budget thrills … Continue Reading

Another Court Finds Rule 23 State Law Class Actions Incompatible With FLSA Collective Actions

We’ve written several times this year about the wide split in authority regarding whether a plaintiff in a wage and hour case may bring both a collective action under the FLSA and a Rule 23 class action with respect to claimed parallel violations of state law. Apart from concerns over the management of simultaneous “opt-in” … Continue Reading

Trial Plan Prompts Decertification of FLSA Class

A recent case demonstrates that it is often easier in theory than in practice to contend that a large group of employees are “similarly situated” for purposes of certifying a collective action.  These differences can prove fatal to the class even though the plaintiffs may win impressive early procedural victories.   In Espenscheid v. Directsat … Continue Reading

Court Decertifies FLSA Class of AT&T Mobility Retail Workers

As we have commented before in this blog, courts considering certification of collective actions under the FLSA often use the two-step procedure generally attributed to the court in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987).  Under that procedure, the court first determines whether to “conditionally” or “provisionally” certify the class.  This first step typically relies … Continue Reading

Fourth Circuit Affirms Summary Judgment Over to Proposed Overtime Class of Store Managers

Three years ago, in Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233 (11th Cir. 2008), the Eleventh Circuit affirmed a large jury verdict in a collective action against the Family Dollar Store retail chain challenging the exempt status of its store managers.  That victory, however, proved to be no guarantee of success in later … Continue Reading

Ninth Circuit Affirms Decertification Of California Wage And Hour Case Involving Dock Supervisors

Thomas Hobbes famously observed that life is short, nasty, and brutish.  A recent case from the Ninth Circuit demonstrates that litigation is similar, except that it is not short. In Marlo v UPS.pdf (9th Cir., April 28, 2011), the plaintiff was a UPS employee who held various supervisory positions in connection with the movement of freight.  … Continue Reading

California Appellate Court Sends Mixed Signals in Affirming Denial of Class Certification.

The Second Appellate District in California recently affirmed a trial court’s refusal to certify a class of store managers in Mora, et al. v. Big Lots Stores, Inc.pdf., Case No. B221949 (April 18, 2011).  Whether this case should be treated as a welcome sign for employers, however, remains an enigma wrapped inside a riddle (served … Continue Reading

Another Court Denies Certification of a Class of Retail Loss Prevention Associates

We just wrote about a recent case in which a court refused to certify a class of Wal-Mart loss prevention employees.  See Bramble v. Wal-Mart Stores Inc., Case No. 09-04932 (E.D. Pa. Apr. 11, 2011).  In the Bramble case, the court found that the duties of the employees were simply too diverse to justify even conditional … Continue Reading

Court Decertifies Overtime Collective Classes of Fitness Trainers and Managers

We’ve commented in this blog in the past about the viability of classes that have been conditionally certified under the FLSA and that many are ultimately decertified. Another case underscores the importance of the distinction between conditionally certified classes under the FLSA and those that survive a motion to decertify. This case also underscores the … Continue Reading

California District Court Refuses To Certify Overtime Class of Hertz Managers

It’s easy to forget that cases to the Supreme Court are in many ways like any other case and their own histories following Supreme Court review.  Almost no-one, for example, could readily identify the individual appointed to the position sought by William Marbury after the Supreme Court’s Marbury v. Madison.pdf decision.  While almost anyone can describe, … Continue Reading

Court Dismisses Putative FLSA Collective Action Due to Vague Pleading

Most of the cases discussed in this blog related to motion practice over certification issues or summary judgment rulings as they bear on class or collective actions.  A recent case from the Western District of Pennsylvania highlights the availability of Rule 12(b)(6) dismissal of the class or collective claims based on run-of-the-mill form complaints. In … Continue Reading

Ninth Circuit Solidifies Split of Authority on Drug Sales Representative Overtime Exemption

In a decision that emphasizes practicality over formalism, the Ninth Circuit recently held that pharmaceutical sales representatives (“PSRs”) are exempt from overtime pay.  In Christopher v. SmithKline Beecham Corp.pdf, __F.3d___, 2011 WL 489708 (9thCir. Feb. 14, 2011) the Court concluded that the “outside sales” exemption to the FLSA applies to PSRs, meaning that they are … Continue Reading

Picking off FLSA Plaintiffs

As we look forward to Spring Training, the Fourth Circuit recently analyzed what courts sometimes refer to as “picking off” collective action plaintiffs.   In Simmons v. United Mortgage Co.pdf., ___F.3d____No. 09-2147, 2011 WL 184356 (Jan. 21, 2011), the Court discussed the interplay of FLSA collective action procedure, Federal Rule of Civil Procedure 68 offers of … Continue Reading

Federal Court in New Jersey Decertifies FLSA Class of 1,500 Home Depot Assistant Managers

A federal court in New Jersey recently decertified an FLSA class of 1,500 Home Depot merchandising assistant store managers (“MASMs”) who claimed they were misclassified as exempt executive employees.  (Aquilino v. Home Depot, U.S.A., Inc.pdf., No. 04-04100 (D. N.J. Feb. 15, 2011).  The court determined that because the job responsibilities and duties varied from MASM … Continue Reading

Court Denies Conditional Certification of Assistant Manager Overtime Claims

A recent case for the Western District of New York demonstrates that little is certain in class action litigation.  In Omiatek v. Big Lots, Inc.pdf., Case No. 09-CV-0352S(Sr) (W.D. N.Y. Jan. 20, 2011), the court bucked two trends and (1) denied conditional certification (2) of a proposed class that consisted of assistant managers. A little … Continue Reading

Tenth Circuit Rejects Collective Claims for “Double Dip” Overtime

Overtime pay under federal law is calculated at one and a half times the employee’s regular rate.  Most employers are already aware that the “regular rate” is not simply the employee’s agreed upon hourly rate of pay, but may also include shift premiums, many bonuses, and other types of compensation.  See 29 U.S.C. § 207(e).   … Continue Reading

California Court Dismisses Employment Antitrust Class Action

Cases involving employment and antitrust are rare.  Typically, such cases involve claims that a group of employers agreed expressly or impliedly to cap or limit wages among their employees.  For example, they may claim that the employers in a particular industry agreed not to pay more than a set wage for employees in certain positions. … Continue Reading

Court Finds Convenience Store Managers Exempt

Managers and assistant managers at retail locations have been the focus of many wage and hour class or collective action lawsuits.  In these cases, the employer often asserts that the employee is exempt under the executive exemption and the employee contends that there was not enough discretion or exempt work to warrant application of the … Continue Reading

Second Circuit Affirms Denial of Class Certification for Hertz Station Managers and Provides Guidance on FLSA Certification Standard

On October 27, 2010, the Second Circuit affirmed a federal court’s refusal to certify a proposed class of Hertz Station Managers allegedly denied overtime under New York law.  (Myers v. Hertz Corp., No. 08-1037 (2d Cir. Oct. 27, 2010)).  In doing so, the court addressed the potential difficulties of certifying Rule 23 overtime exemption cases … Continue Reading

21 Club “Gets Served” On Overtime Class Claims

“……and Please Remember to Tip Your Bartender And Waitress.” The famous 21 Club in New York was on the Curly end of a Larry-esque double-slap from the Southern District of New York last week. Alderman v. 21 Club.pdf Case No. 1:09-cv-2418 (Aug. 20, 2010). By way of background, the plaintiff employees in Alderman are seeking to … Continue Reading