Archives: Wage and Hour

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

By Greg Mersol on September 26, 2017 Posted in Off-the-clock, Wage and Hour

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

Seventh Circuit Affirms Judgment Against Class in Off-Duty BlackBerry Use Case

By Greg Mersol on September 7, 2017 Posted in Wage and Hour

There certainly has been no shortage of publicity about the potential for wage and hour claims for time spent by hourly employees using smartphones or other electronic devices for work while off duty. Many employers have tried to address the need to pay for such time, and to avoid litigation, by promulgating procedures for such … Continue Reading

Ohio District Court Dismisses Contract-Based Wage and Hour Class Action

By Greg Mersol on September 5, 2017 Posted in Wage and Hour

A mud-covered pig is still a pig We’re used to seeing off-the-clock cases for minimum wage and overtime, but at times such claims aren’t available, such as when the employees are paid well above the minimum wage and either do not work overtime or are paid for it. In most states, and under the FLSA, … Continue Reading

Massachusetts District Court Denies Certification for Claims of Unpaid Meal Breaks

By Greg Mersol on July 18, 2017 Posted in Wage and Hour

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

By John Lewis on July 14, 2017 Posted in PAGA, Wage and Hour

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

Court Dismisses Class Action Claims Based on Afghanistan Labor Code

By Greg Mersol on June 28, 2017 Posted in Wage and Hour

United States lawsuits involving the law of Afghanistan are uncommon, but it is common for employees to bring suit based on work done abroad generally, and not just in that one country. A recent case, however, illustrates that while the United States may be a more convenient forum, even a class action may founder if … Continue Reading

D.C. Court Dismisses Class Action Breach of Contract Case Based on Policy Manual

By Greg Mersol on June 27, 2017 Posted in Wage and Hour

Supervisory employees’ claims derailed by merits It’s unusual to see an employment class action based on breach of contract by nonunionized employees. A recent case from the District of Columbia involving the Washington Metropolitan Area Transit Authority (WMATA), reflects why, and highlights problems that occur when employees try to bring class-wide claims based on the … Continue Reading

Judges Refuse Certification of Off-the-clock Wage and Hour Cases

By Greg Mersol on June 26, 2017 Posted in Wage and Hour

Employees at O’Hare Encounter Delays of a Different Kind The Northern District of Illinois has now either decertified or refused to certify two “off the clock” cases involving hourly workers at O’Hare Airport. Neither case involves O’Hare employees per se, but both involve large contractors and highlight the pitfalls for plaintiffs in large off-the-clock cases. … Continue Reading

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

By Greg Mersol on June 12, 2017 Posted in FLSA, Retail, Wage and Hour

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

Chipotle Wins One, Loses One, in Wage and Hour Class Litigation

By Greg Mersol on April 3, 2017 Posted in Wage and Hour

A Tale of Two Cases . . . We’ve commented on numerous occasions about the peculiar paths taken by wage and hour class litigation, particularly with respect to collective actions under the FLSA. Two cases involving the same employer decided only days apart continue to highlight the challenges and sometimes surprising outcomes in those cases. … Continue Reading

Court Decertifies Class Challenging Timekeeping Practices

By Greg Mersol on February 27, 2017 Posted in Wage and Hour

Yogi Berra often has been quoted for the phrase “It ain’t over till it’s over,” and Lenny Kravitz even made a hit song of it in 1991. While no one will likely ever make a popular song out of Rule 23, the phrase applies just as well to class action litigation, as a recent case … Continue Reading

Subway Adopts Novel Approach to Stem Wage and Hour Claims

By Greg Mersol on August 15, 2016 Posted in Wage and Hour

Subway is one of the largest franchisors in the world, with over 26,000 restaurants in the United States alone. It is also in one of the industries most prone to wage and hour claims, a fact reflected in both Department of Labor (DOL) investigations and litigation involving individual outlets. And, predictably, some claimants pursuing wage and … Continue Reading

Here’s a Tip for You, Jack – Fifth Circuit Upholds Ruling on Restaurant Credit Card Offset

By Jeffrey Vlasek on June 23, 2016 Posted in Wage and Hour

Life is filled with risky decisions. Should you take that new job? Should you put in an offer on that house that is just out of your price range? Should you really eat that last piece of cake when you’ve already had two? Companies make big gambles, too. For example, should Lionsgate really invest millions … Continue Reading

Court Grants Summary Judgment for Employer in California Class Action Vacation Pay Case

By Greg Mersol on June 15, 2016 Posted in Wage and Hour

Underlying claim premised on PowerPoint slide invalid Most California employers know that California treats vacation pay largely as a vested benefit that cannot ordinarily be “forfeited.” In common parlance, the state prohibits “use it or lose it” policies. To prevent employees from accruing, or claiming to have accrued, large amounts of vacation time, most California employers … Continue Reading

District Court Denies Conditional Certification of Off-the-Clock Case Despite Bad Emails

By Greg Mersol on June 3, 2016 Posted in Conditional Certification, Wage and Hour

“As far as overtime, you (like I) can only bill a 40hr work week even though we put in like 60hrs at times.” This isn’t exactly the email you want to see if you are defending an off-the-clock wage and hour claim, but it was one of several addressed this week by the District of … Continue Reading

Statistics in Wage and Hour Class Actions: Has Anything Really Changed?

By Greg Mersol on April 25, 2016 Posted in FLSA, Wage and Hour

The probability is “not really” Statistics are kind of a holy grail of class action litigation. Everyone seems to know that they exist, but their understanding is shadowy and the quest to find valid statistical models often proves elusive. Last month’s Supreme Court decision in Tyson Foods, Inc. v. Bouaphakeo, Case No. 14-1146 (Mar. 22, … Continue Reading

Unpaid Internships Given New Life by the Second Circuit

By Todd Lebowitz on July 6, 2015 Posted in Wage and Hour

This Blog is Not about Owen Wilson and Vince Vaughn, But… “The Internship” fails the first test of merit for a comedy: “Is it funny?” I find that opening line in a review from The New Yorker hilarious. (Funnier than the movie.) The movie, of course, tried to be funny. Real unpaid internships, on the other hand, … 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

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

Nevada Supreme Court Finds Class of Strippers Were Employees

By Greg Mersol on December 3, 2014 Posted in FLSA, Independent Contractors, Wage and Hour

Given the extensive use of euphemisms in the exotic dancing trade, we’ll apologize in advance for any unintended puns. We’ve written on the issue of the classification of exotic dancers or strippers in the past [April 8, 2011, October 19, 2011, November 21, 2012], but the question continues to ripple through the courts. While the … Continue Reading

California Appellate Court Rejects Class Action Settlement Due to Excessive Attorney Fees

By Greg Mersol on November 19, 2014 Posted in Wage and Hour

Pigs get fat and hogs get slaughtered, so the saying goes. As we’ve noted before on Oct. 7, June 5, and Dec. 18, courts are starting to examine attorney fee awards in class action settlements much more closely, and the results often aren’t exactly pretty. The most recent example is the case of Lofton v. … Continue Reading

California District Court Rejects Yet Another Class Settlement

By Greg Mersol on November 17, 2014 Posted in Wage and Hour

“Another one bites the dust…” In yet another decision rejecting a settlement of an employment class action, the Northern District of California refused to approve a settlement of a wage and hour suit due to numerous problems with the resolution reached between the parties. In Myles v. AlliedBarton Security Services, LLC, Case No. 12-cv-05661-JD (N.D. … Continue Reading

California District Court Finds Bankrupt Named Plaintiffs Not Adequate Representatives

By Greg Mersol on October 15, 2014 Posted in Rule 23, Wage and Hour

Anyone questioning whether the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), has had an impact need look no further than the decision in Alakozai v. Chase Investment Services Corp., Case No. CV 11-09178 SJO (JCx) (C.D. Cal. Oct. 6, 2014). The Alakozai matter was a wage and hour … Continue Reading