Archives: Wage and Hour

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Central District of California Denies Certification in Mortgage Loan Officer Case

FLSA Conditional Certification Denied Too The position of mortgage loan officer has been a fertile source of wage and hour claims, but a recent case from the Central District of California reflects that certification of a class, even involving such a “target” position, is by no means guaranteed. In Fernandez v. Bank of America, Case … Continue Reading

Do Daubert standards apply at the certification stage? Ninth Circuit splits with itself

It is fitting that the day after Halloween the Ninth Circuit issued its denial of rehearing en banc in Sali v. Corona Regional Medical Center, Case No. 15-56460, because the issue it raises, like Michael Myers in the Halloween movie series, should have been dead long ago. We’ve blogged the issue of whether Daubert standards … Continue Reading

California Court of Appeals Affirms Employer Class Action Wage and Hour Win at Trial

Employer Performance-Based Rate Scheme for Automobile Repair Upheld Under California Law With many of the easy targets for wage and hour matters gone (e.g., misclassification of assistant managers), plaintiffs’ counsel have increasingly turned to technical overtime or minimum wage violations as a vehicle to bring class or collective action litigation. As a recent claim reflects, … Continue Reading

California Meal Period Claim Done In by Collective Bargaining Agreement

While the proportion of private sector employees represented by unions is down, unions retain an important workplace role, and the terms of collective bargaining agreements can both affect and be fatal to wage and hour litigation. That was the lesson learned by the plaintiffs in Ehret v. Winco Foods, LLC, Case No. E067575 (4th Dist. … Continue Reading

Eleventh Circuit Overturns Default Judgment for Failing to Pay Arbitrator’s Fee

With the Epic Systems case broadly supporting employers’ rights to use arbitration agreements with class waivers, what is now emerging is the result of the necessary trade-off. Employers can, in the wake of Epic Systems, use arbitration agreements to compel the arbitration of putative class claims on an individual basis. But the quid pro quo … Continue Reading

Ninth Circuit Affirms Dismissal of Wrongheaded Claim Challenging Discounted Meals for Employees

It turns out the lunch really is free. With low-hanging fruit like claimed misclassification of low-level supervisors already plucked, plaintiffs increasingly turn to more novel claims. In many instances, these involve more technical violations of state and federal law, but some really call into question whether the suit is for the benefit of the employees … Continue Reading

Washington Court Denies Plaintiffs’ Motion for Summary Judgment on Various Overtime Issues

Overconfidence won’t overcome questions of fact Most practitioners and human resource professionals are already familiar with the increasingly difficult wage and hour laws in California and its “Mini Me” to the east, New York state. But some other states, including Oregon and Washington, have their own unique – though perhaps less burdensome – overtime laws. … Continue Reading

Ninth Circuit Finds Evidence at Class Certification Not Required to Be Admissible − The Last Word on the Issue?

In a 28-page opinion, a panel of the Ninth Circuit overturned a district court’s denial of class certification, in part, because the lower court required supporting evidence to be admissible. This decision certainly represents a split among the circuits and is also arguably contrary to the Supreme Court’s 2011 decision in Wal-Mart Stores, Inc. v. … Continue Reading

Courts Deny Certification for Adequacy of Representation in Second Class Action

One of the tactics in the current plaintiffs’ wage and hour playbook is to bring a second claim after settlement of an initial class or collective action lawsuit. In these cases, the second set of claims is purportedly brought on behalf of those who did not opt in or participate, or it is for alleged … Continue Reading

Second Circuit Affirms Summary Judgment in Putative Internship Class

Four years ago, a wave of cases involving unpaid internships looked to be the next “big thing.” As those cases sputtered, however, and employers reduced or eliminated internships, the flood of anticipated litigation never fully materialized. Many targets of these claims simply settled, but a small number of these cases continued to be litigated. In 2012, … Continue Reading

California Court Denies Conditional Certification of “Regular Rate” Overtime Case

With waves of cases already having addressed common targets for wage and hour litigation – assistant managers, healthcare workers, loan officers, donning and doffing claims, and the like – cases alleging more arcane claimed violations are becoming more common. In many of these cases, plaintiffs’ counsel have sighted popular employee perks, like free meals or … Continue Reading

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

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

Massachusetts District Court Denies Certification for Claims of Unpaid Meal Breaks

It has become almost part of the plaintiff playbook to bring wage and hour claims despite lawful employer policies by claiming some sort of “class-wide” policy of deviating from those policies. Sadly, this tactic works at least as often as not in collective action litigation, where many courts are quick to conditionally certify even questionable … Continue Reading

California Supreme Court Denies Sequenced Discovery in Representative PAGA Action

On July 13, 2017, the California Supreme Court rejected lower court holdings that limited an employee’s ability to secure statewide employee contact and employment information in a representative PAGA action, when the plaintiff only worked in one of the employer’s stores. In Williams v. Superior Court of Los Angeles County (Marshalls of CA, LLC), Case … Continue Reading
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