Archives: Wage and Hour

Subscribe to Wage and Hour RSS Feed

Ninth Circuit Rejects Airline’s Constitutional Challenges to California’s Wage Statement Statute

Photo of Matthew GoodmanBy Matthew Goodman on Posted in Wage and Hour
Virtually by definition, many transportation workers, and many employees of airlines and railroads in particular, regularly travel and work in many states. For the most part, that does not impede their work or their employers’ businesses, but what if one state’s laws (read California’s) are unusually burdensome? That issue arose in a pair of class … Continue Reading

Seventh Circuit Fires Warning Shot, USERRA May Require Paid Military Leave

Photo of Todd DawsonBy Todd Dawson on Posted in Wage and Hour
In a case that it characterized as one of first impression in the federal courts of appeals, the Seventh Circuit held last week that the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq. (“USERRA”), may, in some circumstances, require employers to provide paid leave to employees absent from work due to … Continue Reading

Ninth Circuit Holds Employee Expense Per Diem Can Constitute ‘Wages’ to Determine the Regular Rate

Photo of Joseph S. PersoffBy Joseph S. Persoff on Posted in Wage and Hour
In a case involving two certified classes, the Ninth Circuit Court of Appeals concluded this week that an employer’s per diem paid to traveling employees to reimburse for the cost of meals, incidentals and housing while working away from home can constitute a “wage.” Clark v. AMN Services, LLC, Case No. 19-55784 (9th Cir., Feb. 8, 2021). … Continue Reading

Travel Time Compensable Under California Law Despite Contrary Union Agreement

Photo of Todd DawsonBy Todd Dawson on Posted in Wage and Hour
While California’s wage-and-hour rules recognize a number of exceptions for employees subject to a collective bargaining agreement, the California Supreme Court’s denial of review in Gutierrez v. Brand Energy Svcs. of Calif. is a reminder that such exceptions are not without limits. Case No. A154604, review denied 9/9/20. The California wage order at issue in … Continue Reading

Texas District Court Refuses to Certify Class of Nurses in Wage Antitrust Case

Photo of Greg MersolBy Greg Mersol on Posted in Class Action Litigation, Wage and Hour
Expert’s Report Didn’t Adequately Explain Causation While antitrust cases are often good candidates for class action treatment, it is still important for the plaintiffs to demonstrate a connection between the alleged anti-competitive conduct and the alleged harm, as a recent case from the Western District of Texas found. In Maderazo v. VHS San Antonio Partners, … Continue Reading

Central District of California Denies Certification in Mortgage Loan Officer Case

Photo of Greg MersolBy Greg Mersol on Posted in FLSA, Wage and Hour
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

Photo of Greg MersolBy Greg Mersol on Posted in Class Certification, Wage and Hour
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

Photo of Greg MersolBy Greg Mersol on Posted in Class Action Litigation, Wage and Hour
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

Photo of Greg MersolBy Greg Mersol on Posted in State Labor Laws, Wage and Hour
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

Photo of Greg MersolBy Greg Mersol on Posted in FLSA, Wage and Hour
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

Photo of Greg MersolBy Greg Mersol on Posted in Meal and Rest Periods, Wage and Hour
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

Photo of Greg MersolBy Greg Mersol on Posted in Wage and Hour
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?

Photo of John LewisBy John Lewis on Posted in Class Certification, Wage and Hour
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

Photo of Greg MersolBy Greg Mersol on Posted in Class Action Litigation, Collective Action, Wage and Hour
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

Photo of Greg MersolBy Greg Mersol on Posted in FLSA, Wage and Hour
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

Photo of Greg MersolBy Greg Mersol on Posted in Wage and Hour
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
LexBlog