Archives: Retail

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

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

California Supreme Court Clarifies “Day of Rest” Requirements

By Lucas Paule on May 10, 2017 Posted in Retail, Wage and Hour

California’s employment laws have consistently caused headaches for employers because even minor technical violations of these laws can fuel class action litigation and prove costly. However, a recent decision by the California Supreme Court, Mendoza v. Nordstrom, Inc. (SC S224611), provides some clarity by tackling three burning questions regarding California’s day of rest statutes – … 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

Justices Pass on Second Opportunity to Resolve the California PAGA Divide in the Bridgestone Case

By John Lewis on June 3, 2015 Posted in Arbitration, PAGA, Retail

For a second time the U.S. Supreme Court declined to hear a case challenging a California Supreme Court holding that the state’s Private Attorneys General Act (PAGA) could not be waived in a mandatory arbitration agreement. The January 5, 2015, certiorari petition in Bridgestone Retail Operations, LLC v. Brown, No. 14-790 asserted: This case presents … 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

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

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

Sixth Circuit Refuses to Uphold Collective Action Waiver Absent Arbitration

By Greg Mersol on August 11, 2014 Posted in Arbitration, Collective Action, Retail

My working title for this blog was “collective action grab bag,” concerning the recent Sixth Circuit case in Killion v. KeHE Distributors, LLC, Case Nos. 12-3357/4340 (6th Cir. July 31, 2014). I went with the title that seemed to be of interest to most practitioners, but the case actually touched on several issues, one of … Continue Reading

Florida District Court Rejects ERISA Claims Premised on Alleged FLSA Violations

By Greg Mersol on May 9, 2014 Posted in ERISA, FLSA, Retail, Rule 23

Plaintiffs in most class and collective actions try to plead their claims in such a way as to exert the maximum pressure against the employer. In some instances, that raises the issue of whether the plaintiff should assert one, clear claim or several. Having only one claim places the issues more starkly, but oftentimes plaintiffs … Continue Reading

Eleventh Circuit Refuses to Enforce Post-Suit Arbitration Agreements Based upon Employer Misconduct

By Greg Mersol on April 4, 2014 Posted in Arbitration, FLSA, Retail

The British have a phrase “too clever by half” to describe complex schemes that ultimately won’t work. We all know from cases such as Concepcion, Stolt-Nielsen, Italian Colors, and their progeny that arbitration agreements are far more likely to be enforced today than only a year or two ago, particularly in the class action context. … 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

Eleventh Circuit Affirms Employer’s Directed Verdict Based On FLSA Outside Sales Exemption

By Todd Dawson on December 10, 2013 Posted in FLSA, Retail

“I Blew Off My Exempt Duties” Insufficient To Establish Jury Question. Slackers everywhere may have shed a tear in their Doritos on Friday after reading the Eleventh Circuit’s decision in Reyes v. Goya Foods, Inc., Case No. 13-12827 (11th Cir. 12/6/13). The plaintiff in Reyes sought to bring an FLSA collective action against the defendant … Continue Reading

Multiple Courts Criticize EEOC Behavior In Class Cases

By Greg Mersol on October 7, 2013 Posted in Discrimination, EEOC, Retail, Title VII

Over the last 5 years, the EEOC has become increasingly aggressive in the bringing and pursuit of broad initiatives and, in particular, class litigation. Cynics can debate whether this springs from a desire to make a difference or one to bully employers through litigation costs into abandoning lawful practices that are not to its liking, … Continue Reading

California Courts Issue Multiple Decisions for Employers in Class Cases

By Greg Mersol on May 17, 2013 Posted in Retail, Rule 23

Just two years ago, a California case declining certification of an action would have been cause for comment. But since then, in 2011 the United States Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011); in 2012 the California Supreme Court decided Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th … Continue Reading

Ninth Circuit Finds Rule 23 Class Actions and FLSA Collective Actions Compatible

By Greg Mersol on April 18, 2013 Posted in FLSA, Retail

As we’ve noted before, circuit court authority on collective action issues is relatively sparse. Although we like to comment on such cases, the most recent such opinion is in many respects a nonevent. Several lower courts have refused to combine state law Rule 23 class actions and federal FLSA collective actions in the same case, … Continue Reading

California Appellate Court Orders Arbitration and Rules that Claims May Not Proceed On Behalf of a Class: Plaintiff in Macy’s OT Action Gets What She Bargained For

By Greg Mersol on January 31, 2013 Posted in Arbitration, Retail

Authored by: Dawn Kennedy A recent decision from a California court of appeals reflects a growing, if at times reluctant, acceptance by California courts of employment arbitration. In Outland v. Macy’s Department Stores, Inc., Case No. A133589 (Ct. Cal. App. Jan. 16, 2013) a former group sales manager for defendant Macy’s Department Stores filed a … Continue Reading

California Court Finds For Retailer After Trial Of PAGA Seating Claims

By Greg Mersol on January 7, 2013 Posted in PAGA, Retail

In 2004, California passed the Private Attorney General Act, more commonly known either as “PAGA” or the “sue your employer act.” PAGA permits employees to bring claims against their employer, essentially on a class basis, for civil penalties based on various parts of the California Labor Code. Although the act has been in force for … Continue Reading

Court of Appeal Turns Volume Down on Plaintiff in Meal Period Class Action Against RadioShack

By Greg Mersol on December 7, 2012 Posted in Meal and Rest Periods, Retail

Authorship credit: Dawn Kennedy The California Court of Appeal has maintained the recent post-Brinker trend of refusing to certify cases involving meal and rest period claims where an employer has a compliant break policy. In 2004, plaintiff Morry Brookler, a former RadioShack employee, asserted claims for meal period violations on behalf of “all non-exempted employees at … Continue Reading

Court Denies Conditional Certification of Proposed Class of Retail Representatives

By Greg Mersol on November 30, 2012 Posted in FLSA, Retail

We’ve written several times in the past about the two-step procedure now in vogue for the handling certification of collective actions under section 16(b) of the FLSA. Under that procedure, a plaintiff first moves for “conditional certification,” which, despite its name, means only that the court is authorizing notice to the potential class members, and … Continue Reading

California District Court Refuses to Certify Retail Rest and Meal Period Case

By Greg Mersol on November 26, 2012 Posted in FLSA, Meal and Rest Periods, Retail

In the wake of the California Supreme Court’s decision in Brinker Restaurant v. Superior Court, 165 Cal. 4th 1004 (2012) (see our post on the decision), cases refusing to certify rest and meal period have become far more common as a recent decision from the United States District Court for the Central District of California … 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

District Court Decertifies FLSA Class of Retail Managers

By Greg Mersol on August 31, 2012 Posted in FLSA, Retail

When I was growing up, my father had a workshop he used to relax on weekends. While he enjoyed doing projects, he also regularly misplaced tools, much to the frustration of everyone. When my brother moved out of the house, he also lost the only other person he could blame for losing them. In the … Continue Reading

Seventh Circuit Reverses Certification of Construction Workers’ Race Discrimination Classes  Based Upon Wal-Mart

By John Lewis on August 13, 2012 Posted in Discrimination, Retail

The U.S. Court of Appeals for the Seventh Circuit, in an opinion written by Chief Judge Frank Easterbrook, reversed an Order certifying two multi-site classes of black construction workers alleging race discrimination based upon the U.S. Supreme Court’s decision in Wal-Mart Stores v. Dukes, 131 S. Ct. 2541 (2011). In Bolden v Walsh Construction.pdf, (No. … Continue Reading