Tag Archives: “collective action”

Smoother Sailing Ahead for PAGA Arbitrability Under Viking River Cruises Decision

Photo of Matthew KanePhoto of Sylvia KimPhoto of Amy E. BeverlinBy Matthew Kane, Sylvia Kim and Amy E. Beverlin on Posted in Arbitration, Arbitration Agreements
On June 15, the U.S. Supreme Court finally brought closure to the long-running, unsettled issue of whether California’s prohibition against arbitration agreement waivers of the right to bring representative actions under the California Labor Code Private Attorneys General Act (PAGA) is preempted by the Federal Arbitration Act (FAA). California’s appellate courts and the Ninth Circuit … Continue Reading

Spending Bill Would Place Class Action Waivers in Jeopardy

Photo of Greg MersolBy Greg Mersol on Posted in Arbitration Agreements, Collective Action, FLSA, Supreme Court
Only three years ago, the Supreme Court reversed the holdings of a large number of lower courts and held that class action waivers in arbitration agreements were enforceable. Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018). We blogged about that decision here.  With the Supreme Court’s ruling, many employers either adopted such agreements … Continue Reading

North Carolina Court Rejects Collective Action Based on Regular Rate Issues

Photo of Greg MersolBy Greg Mersol on Posted in Collective Action
In some instances, it’s hard to see what benefit there is to a class action other than for the lawyers. This is particularly true in so-called “regular rate” cases challenging employer perks such as free meals, various kinds of bonuses, or other employee benefits. We’ve commented on these cases previously. A recent case raises these same … Continue Reading

Maryland District Court Grants Summary Judgment Against Collective Class in Claimed Misclassification Case

Photo of Greg MersolBy Greg Mersol on Posted in Collective Action
Misclassification cases are grist for the mill in wage and hour litigation. As we have pointed out previously, the typical pattern is for the plaintiff to assert claims for unpaid overtime on the grounds that the position involved allegedly did not entail exempt work, to obtain conditional certification under the lower “stage one” procedure and then … Continue Reading

Seventh Circuit Now Addresses When Notices of Collective Action Can be Given to Employees Who May Have Arbitration Agreements Waiving Their Right to Join

Photo of John LewisBy John Lewis on Posted in FLSA
Whether to give notices of a collective action under the Fair Labor Standards Act (FLSA) to employees who may join presents some nuanced and challenging questions for district courts. The court must “respect judicial neutrality and avoid even the appearance of endorsing the action’s merits.” See Hoffmann-LaRoche Inc. v. Sperling, 493 U.S. 165, 171-174 (1989). … 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

New York District Court Denies Conditional Certification of Second FLSA Collective Action

Photo of Greg MersolBy Greg Mersol on Posted in Collective Action, Conditional Certification
Because of the low standard employed by many courts, decisions denying conditional certification in FLSA cases are generally in the minority, but some careful courts will continue to make such decisions. A recent case is notable not only for the fact that the court denied conditional certification, but also that it actually examined the events … Continue Reading

Supreme Court Agrees to Hear Case Addressing Scope of Wage and Hour Class and Collective Actions

Photo of Greg MersolBy Greg Mersol on 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

Gawker Interns and the Use of Social Media to Notify Potential Class Members

Photo of John LewisBy John Lewis on Posted in Collective Action, Conditional Certification, FLSA
Social media has dramatically impacted many areas of law, and class and collective action litigation is no exception. Recently, a number of former interns who sued Gawker Media LLC and its owner Nick Denton (Gawker) for wage and hour claims repeatedly sought court approval to distribute court-authorized notice of the action through social media. The … Continue Reading

Another Federal Court Decertifies FLSA Collective Action of Hospital Workers Challenging Auto-Deduct Policy

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in Collective Action, FLSA, Meal and Rest Periods
We have previously discussed that, while medical providers have become a common target of plaintiffs asserting wage and hour claims arising out of so-called “auto-deduct” policies, more and more courts are realizing that the inherently fact-specific nature of these lawsuits make class treatment very difficult.  See our posts from June 23, 2014, and September 17, … Continue Reading

New York District Court Conditionally Certifies Class of Interns

Photo of Greg MersolBy Greg Mersol on Posted in Collective Action, Conditional Certification, FLSA
A Blog About Bloggers Have you read any of the following lately? “Chinese Government Fans the Flames of the Ebola Zombie Rumors” “Arrested for Marijuana, Jackie Chan’s Son Could Face Execution” “Who is Dumpling All These Tuxedo Cats at a California Animal Shelter?” These are all recent headlines from various blogs run by Gawker Media … Continue Reading

Third Circuit: Availability of Classwide Arbitration is an Issue for the Courts – Not Arbitrators – Unless the Parties Agreed Otherwise

Photo of Joel GriswoldBy Joel Griswold on Posted in Arbitration, Collective Action, FLSA
Wednesday, the Third Circuit held that the determination of whether an agreement allows classwide arbitration is a question of arbitrability for the courts “unless the parties unmistakably provide otherwise.”  Opalinski v. Robert Half International Inc., Case No. 12-4444 (3d Cir. July 30, 2014). In Opalinski, former Robert Half International, Inc. (RHI) employees filed a putative … Continue Reading

Second Circuit Finds Auditors Exempt and Endorses Limits on Class Discovery

Photo of Greg MersolBy Greg Mersol on Posted in Collective Action
While the number of class or collective action lawsuits has exploded, decisions from Circuit Courts of Appeal, particularly on procedural issues, are still infrequent enough to warrant comment.  In Pippins v. KPMG, Case No. 13-889-cv (July 22, 2014), the Second Circuit issued a decision that is notable not only for its decision on the merits, … Continue Reading

Arizona District Court Rejects Joint Employer Arguments in Independent Contractor Case Alleging Misclassification of Truck Drivers

Photo of Greg MersolBy Greg Mersol on Posted in Independent Contractors
A month ago we discussed the Ninth Circuit’s decision in Ruiz v. Affinity Logistics Corp., Case No. 12-56589 (9th Cir. June 16, 2014), in which the employer treated its delivery drivers as employees in everything but name, resulting in the unsurprising finding that they were employees and not independent contractors.  An Arizona district court has … Continue Reading

U.S. Supreme Court Refuses to Hear Petition that Proceeding as a Collective Action Under the FLSA is a Non-Waivable Substantive Right

Photo of Joel GriswoldBy Joel Griswold on Posted in Collective Action, FLSA
In the last week, we have seen several significant decisions from the U.S. Supreme Court.  On Monday, however, the Court made a noteworthy “non-decision” by declining a petition for certiorari that raised the question of whether a collective action under the Fair Labor Standards Act is a non-waivable, substantive right. In Walthour v. Chipio Windshield … Continue Reading

Rule 68 Offer That Excludes Individual Claim Does Not Moot Putative FLSA Collective Action

Photo of Todd DawsonBy Todd Dawson on Posted in FLSA, Rule 68
“The Last Inch Is The One That Counts”  The recent decision in Silva v. Tegrity Personnel Svcs., Inc., Case No. 4:13-cv-00860 (S.D. Tex. 12/5/2013), suggests that some district courts haven’t fully embraced the Supreme Court’s holding in Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013).  The plaintiff in Silva filed a proposed … Continue Reading

Eleventh Circuit Affirms Employer’s Directed Verdict Based On FLSA Outside Sales Exemption

Photo of Todd DawsonBy Todd Dawson on Posted in FLSA, Retail
“I Blew Off My Exempt Duties” Insufficient To Establish Jury Question. Slackers everywhere may have shed a tear in their Doritos on Friday after reading the Eleventh Circuit’s decision in Reyes v. Goya Foods, Inc., Case No. 13-12827 (11th Cir. 12/6/13).  The plaintiff in Reyes sought to bring an FLSA collective action against the defendant … Continue Reading

New York District Court Grants Summary Judgment Against FLSA Class of Insurance Claims Adjusters

Photo of Greg MersolBy Greg Mersol on Posted in Conditional Certification, FLSA
In a number of cases, the plaintiffs’ strategy in collective active litigation under the Fair Labor Standards Act may fall into a familiar pattern:  file the case, do minimal discovery, move for conditional certification under the first-tier lenient standard, and then settle before decertification.  While frustrating for employers, it can be, and often is, a … Continue Reading

Third Circuit Finds That Putative Class Representatives Could Not Challenge Decertification Of An FLSA Collective Action Once They Dismissed Their Own Claims

Photo of Greg MersolBy Greg Mersol on Posted in FLSA
While the now familiar two-step process for determining certification of FLSA collective actions may have been introduced based on valid concerns, it is increasingly vexing for employers in cases where they have either done nothing wrong or in cases that even on inspection are unlikely to survive conditional certification.  The idea is that is a … Continue Reading

Federal Court Decertifies Wisconsin FLSA Class Of Meat Processing “Kill Department” And “Boning Department” Employees

Photo of Gilbert BroskyBy Gilbert Brosky on Posted in FLSA, Wage and Hour
We have blogged a number of cases in which courts have conditionally certified FLSA actions, only to later decertify them when the specter of trial begins to loom.  While FLSA decertification cases often involve office or sales employees, as a federal court in Wisconsin recently demonstrated, efficiently resolving FLSA collective actions at trial can quickly … Continue Reading

Southern District of New York Denies Conditional Certification in Misclassification Case

Photo of Greg MersolBy Greg Mersol on Posted in FLSA
Despite its significant rulings in other areas, we don’t have any blockbuster Supreme Court opinions to discuss this week as it has already decided all of class action before it.  Since we don’t have a Dukes, Concepcion, Comcast, or AMEX opinion in the offing, let’s talk about something else. Courts that employ the two-step certification … Continue Reading
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