Archives: Wage and Hour

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

California District Court Rejects Shotgun Attacks on Arbitration Agreements

By Greg Mersol on July 14, 2014 Posted in Arbitration, Wage and Hour

Alright, we all know in the wake of Italian Colors, Concepcion, and now many other cases that the presumption of arbitrability isn’t just a doctrine to recite in the manner of saying grace before invalidating an agreement, but is actually meant to be followed, even when it might ultimately thwart a class action. But can … Continue Reading

California Supreme Court (!) Issues Strong Pro-Defense Wage and Hour Class Action Decision

By Greg Mersol on May 30, 2014 Posted in Class Certification, Wage and Hour

“Depending on the nature of the claimed exemption and the facts of a particular case, a misclassification claim has the potential to raise numerous individual questions that may be difficult, or even impossible, to litigate on a classwide basis.” “[T]rial courts deciding whether to certify a class must consider not just whether common questions exist, … Continue Reading

West Virginia District Court Refuses To Certify Fail Safe Class

By Greg Mersol on May 16, 2014 Posted in Rule 23, Wage and Hour

It’s not uncommon to see putative classes pleaded in terms of the violation of a specific statute, such as “all managers misclassified as exempt by defendant” or “all persons harmed by defendant’s discriminatory policies.” In all likelihood, classes may be pleaded this way due to the attorney’s bravado that, of course, all of the defendant’s … Continue Reading

California District Court Rejects Overtime Settlement Over $50,000 Incentive Awards

By Greg Mersol on April 28, 2014 Posted in Wage and Hour

Large incentive awards continue to jeopardize class action settlements. We wrote on February 14 about recent cases in which Circuit Courts rejected settlements due to disproportionate incentive awards. A recent case from the Central District of California reflects that lower courts are taking a close look at such awards and the relationship of the size … Continue Reading

Russell v. Citigroup Inc. – Language in Revised Arbitration Agreement Torpedoes its Application to Pending Class Action

By John Lewis on April 15, 2014 Posted in Arbitration, Off-the-clock, Wage and Hour

A Sixth Circuit panel found the text of an updated arbitration agreement indicated it did not apply to a wage and hour class action already pending when the agreement was signed. Russell v. Citigroup, Inc., Case No. 13-5994 (6th Cir. April 4, 2014). Keith Russell had worked at a Citicorp call center in Florence, Kentucky … Continue Reading

Eleventh Circuit Affirms Dismissal of RICO Claims

By Greg Mersol on March 18, 2014 Posted in Wage and Hour

Is there a statute with a better acronym than RICO? The Racketeer Influenced and Corrupt Organizations Act, apart from its great acronym, has been both a great success and a tool for misuse. We don’t often see RICO claims in the employment context, let alone employment class actions, and we can’t resist commenting on a … Continue Reading