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 employer’s policy manuals.
First, some background. The transit system in Washington, D.C., has drawn a great deal of unfavorable publicity over its expense, safety issues, frequent service interruptions and other issues. Despite ridership declines in the wake of several highly publicized safety issues and service problems, the Metro has approximately 12,500 employees, over 1,000 of whom make over $100,000 in base pay. The average pay for all Metro employees is $84,000 plus generous fringe benefits costing nearly $40,000 more. Most of these employees are unionized and WMATA pays over $100 million per year in overtime costs. So how do the supervisors fare? Continue Reading
Employees at O’Hare Encounter Delays of a Different Kind
Last Friday, the U.S. Department of Justice (DOJ), in a rare move, changed its position in a class waiver case pending before the U.S. Supreme Court. On Jan. 13, 2017, the Court granted certiorari in three consolidated cases to resolve whether arbitration agreements with class and collective waivers are enforceable under the Federal Arbitration Act (FAA) despite the National Labor Relations Board’s (NLRB’s) current interpretation of Sections 7 and 8 of the National Labor Relations Act (NLRA). We have extensively covered the lengthy run-up to the cases involving Epic Systems Corp., Ernst & Young and Murphy Oil USA Inc., including the grant of certiorari, in a Jan. 17, 2017, blog 
One of the difficulties of class action litigation that continues to vex employers is the frequent inability to obtain meaningful review of certification decisions. Because, the reasoning goes, certification orders are interlocutory in nature, there is no right of immediate review. While since 1998 there has been the potential for review of orders granting or denying certification of Rule 23 class actions under Rule 23(f), the decision whether to review is purely discretionary, akin to a petition for writ of certiorari. That discretion has been exercised in such a way that review of even highly questionable decisions is frequently unavailable and cases can continue to proceed and to increase cost and risk even while a petition for review is pending. These problems are even worse in so-called “conditional certification” decisions under the Fair Labor Standards Act (FLSA), where no review is available at all.
In a strangely timed opinion, the Sixth Circuit has entered the fray over whether class and collective waivers in employee arbitration agreements violate the National Labor Relations Act (NLRA). Strangely timed because on January 13, 2017, the U.S. Supreme Court granted certiorari in three consolidated cases that will resolve if arbitration agreements with class and collective waivers are enforceable under the Federal Arbitration Act (FAA), irrespective of the Board’s current interpretation of the NLRA. We have been following the developing law in this area for years and addressed the Supreme Court’s grant of certiorari in a January 17, 2017 
Unlike, say, mortgage loan officers or computer programmers, the population of professional cheerleaders is relatively small, but an ongoing case involving independent contractor and joint employer issues for one such group presents lessons for many others.
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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.