Tag Archives: “collective action”

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

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

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

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

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

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

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

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

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

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

“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

“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

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

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

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

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

Fifth Circuit Upholds Unsupervised Release of FLSA Claims

Do you remember the movie “Spring Break ’83”?  We don’t either, but it has spawned what may be the most significant Fair Labor Standards Act case this year. The FLSA has traditionally been read to preclude private releases of claims for minimum wages or overtime.  The genesis of this requirement is the fear that employers … Continue Reading

Supreme Court Grants Certiorari On Issue Of Rule 68 Offers Of Judgment In Collective Actions

Rule 68 offers of judgment have often been rendered almost meaningless in employment class and collective actions amidst criticism by some courts that they would permit employers to “pick off plaintiffs” and to avoid class litigation altogether. As we have noted previously, these courts express little or no sensitivity towards the cost of class or … Continue Reading

Trial Plan Prompts Decertification of FLSA Class

A recent case demonstrates that it is often easier in theory than in practice to contend that a large group of employees are “similarly situated” for purposes of certifying a collective action.  These differences can prove fatal to the class even though the plaintiffs may win impressive early procedural victories.   In Espenscheid v. Directsat … Continue Reading

Ninth Circuit District Courts Diverge on Simultaneous Collective and Class Overtime Claims

Courts have long recognized that class actions are not available under the FLSA because it has its own collective action procedure contained in section 16(b) of the Act, 29 U.S.C. section 216(b).  Section 16(b) permits a collective action to proceed if the members of the putative class are “similarly situated.” Among other differences from Rule … Continue Reading
LexBlog