Tag Archives: FLSA

Supreme Court Adopts Strict Construction of Salaried Test, Even for Highly Paid Exempt Employees

By Greg Mersol on February 22, 2023 Posted in Supreme Court

One relatively common misapprehension by employers is that generous wages or popular methods of payment will satisfy the Fair Labor Standards Act (FLSA). On February 22, 2023, the Supreme Court reiterated the need not simply for “fair” employment policies or high wages but for adherence to the specific tests for exempt employees. In Helix Energy … Continue Reading

Supreme Court Holds Prejudice Not Required for Waiver of Right to Arbitrate – But Does Little Else

By Greg Mersol on May 23, 2022 Posted in Arbitration

In a much-anticipated opinion, the Supreme Court unanimously held this morning that a party claiming waiver of the right to arbitrate need not show prejudice, in Morgan v. Sundance, Inc., Case No. 21-328 (May 23, 2022). While the holding on this point is clear, the Court very explicitly declined to address a series of related … Continue Reading

Lessons from 2021 on Avoiding Class Action Claims for Meal and Rest Break Violations in California

By Margaret Rosenthal, Shareef Farag and Ari Spitzer on February 4, 2022 Posted in California, Class Action, Meal and Rest Periods

In 2021, the California Supreme Court handed down two important decisions, Donohue v. AMN Services, LLC and Ferra v. Loews Hollywood, LLC, that reinforce and refine tried-and-true lessons about meal and rest breaks. As California employers look ahead to their 2022 goals and try to lessen their risk of class action employment claims based on … Continue Reading

Third Circuit Rejects District Court’s Trial-Before-Certification Plan

By Greg Mersol on October 20, 2021 Posted in Class Action, Class Action Litigation, FLSA, Off-the-clock, Rule 23

Years ago, employers argued unsuccessfully that plaintiffs should not be able to pursue so-called hybrid claims pursuing both Rule 23 opt-out classes and Fair Labor Standards Act (FLSA) opt-in collective claims at the same time. They noted that combining the two would create procedural anomalies and that doing so would make case resolution unwieldy. They … Continue Reading

The Fifth Circuit Again Considers the ‘Forby’ Case and When the Right To Arbitrate Is Waived Based on an Amended Complaint

By John Lewis on October 8, 2021 Posted in Arbitration, Arbitration Agreements, FLSA

By John B. Lewis As we have said in the past, determining when a party waives its right to arbitrate is never easy and the nuanced standards vary among the circuits. Now a case that has come to the U.S. Court of Appeals for the Fifth Circuit a second time confirms our belief. The Fifth … Continue Reading

Spending Bill Would Place Class Action Waivers in Jeopardy

By Greg Mersol on September 10, 2021 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

District Court Rejects Conditional Certification of FLSA Claims Inserted into Data Breach Class

By Greg Mersol on July 1, 2021 Posted in Conditional Certification, FLSA

Here’s a novel approach: What if you have an “off the clock” case where the court disfavors certification? Can you simply tack them onto claims in another pending class action lawsuit? That was the tactic attempted by the plaintiffs in In Re Wawa, Inc. Data Security Litigation, Civil Action No. 19-6019 (E.D. Pa., May 24, … Continue Reading

Florida Court Denies Conditional Certification in Tip Credit Case

By Greg Mersol on February 17, 2021 Posted in Class Certification

Court also rejects ‘fail-safe class’ allegations The restaurant industry has been among the hardest hit during the current pandemic, but that has not prevented plaintiffs from pursuing class and collective action claims against it. A recent case, however, has rejected two fairly common problems inherent in these kinds of cases. In Balassiano v. Fogo De … Continue Reading

The Fifth Circuit Rejects Two-Stage Conditional Certification Procedure for FLSA Collective Actions

By Greg Mersol on January 15, 2021 Posted in FLSA

Court directs application of a more rigorous and more sensible standard. Much of the current tsunami of wage and hour litigation across the country has been fueled by the use of a two-step procedure in Fair Labor Standards Act (“FLSA”) collective actions that simultaneously facilitates the bringing of such claims and puts unreasonable pressure on … Continue Reading

Eleventh Circuit Upholds Small Fee Award in FLSA Case

By Greg Mersol on December 8, 2020 Posted in FLSA

When is a win not a win? One ace in the hand of plaintiffs’ counsel in Fair Labor Standards Act (FLSA) litigation (as well as claims under Title VII, the Americans with Disabilities Act or the Age Discrimination in Employment Act) is their ability to recover attorney fees should they prevail. While that is, indeed, … Continue Reading

Fifth Circuit Finds Grievance Settlement Extinguished FLSA Claims

By Todd Dawson on September 30, 2020 Posted in FLSA

The U.S. Court of Appeals for the Fifth Circuit’s recent decision in Stuntz v. Lion Elastomers, LLC, Case No. 19-40336 (Sept. 23, 2020), offers some reassurance to employers that wage and hour issues can be properly (and finally) resolved in grievance settlements. The employer in Stuntz permitted its production employees to clock in as early … Continue Reading

Ninth Circuit Finds No Right of Contribution or Indemnity Under the FLSA

By Greg Mersol on July 6, 2020 Posted in FLSA

Joint or single employer liability has gotten a lot of attention in recent years, where a company is held responsible for the employment obligations of a sufficiently interrelated contractor or corporate entity. Our sister blog, the Employment Law Spotlight, has reviewed many of these issues in detail. See, e.g., our January 13, 2020 blog. But … Continue Reading

Sixth Circuit Addresses RICO and FLSA Claims

By Greg Mersol on July 2, 2020 Posted in FLSA

Successful FLSA plaintiffs will likely receive not only the claimed unpaid overtime or minimum wage, but also liquidated (double) damages and payment of their attorney fees. But what if they want . . . more? Will a RICO claim get them additional funds? That was the question the Sixth Circuit has answered in a pair … Continue Reading

Illinois District Court Decertifies FLSA Collective With 1,600 Opt-Ins

By Greg Mersol on June 29, 2020 Posted in FLSA

Just before the pandemic triggered closings across the country, we identified an Illinois case as a good candidate for discussion. As the pandemic has eased, we’re taking the time now to address issues relating to the decision as to whether an off-the-clock case that has been conditionally certified should be permitted to remain as a … Continue Reading

Second Circuit Upholds Fluctuating Work Week Despite Potential Payroll Issues

By Greg Mersol on June 24, 2020 Posted in FLSA

More than 75 years ago, just four years after the passage of the Fair Labor Standards Act (FLSA), the United States Supreme Court recognized what has now become known as the fluctuating work week (or “FWW”) as an alternative to the strict payment of overtime at time and a half. Overnight Motor Transportation Co. v. Missel, … Continue Reading

Arkansas District Court Reduces Attorney Fees in FLSA Collective Action to $1

By Greg Mersol on June 12, 2020 Posted in FLSA

It’s hard not to express cynicism when discussing attorney fee awards in overtime class and collective actions. Courts have adopted wildly different tests and benchmarks, and different jurisdictions apply very different levels of scrutiny. The availability of fees has fueled the epic growth in Fair Labor Standards Act (FLSA) class and collective litigation. Many of … Continue Reading

Ninth Circuit Finds That Settlement of Individual Claims Moots Class Allegations

By Greg Mersol on June 8, 2020 Posted in FLSA

Why, no, a plaintiff can’t eat his cake and have it, too It is often the case that plaintiffs who cannot proceed as a class will settle their individual claims. But what if they really want an incentive award, or their attorneys really want a class-size fee award? Can they settle the individual claim and then continue to … Continue Reading

District Court Dismisses Majority of Claims in Women’s Soccer Equal Pay Dispute

By Greg Mersol on May 22, 2020 Posted in Equal Pay

The U.S. Women’s Soccer team has won four FIFA World Cup titles and four Olympic gold medals. The U.S. Men’s Soccer team has not, and did not even qualify for the most recent men’s World Cup. In the wake of the successes of the women’s team, particularly in comparison to the record of the men’s team, media … Continue Reading

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

By Greg Mersol on April 21, 2020 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

Maryland District Court Refuses Conditional Certification of Proposed Class of Grocery Store Managers

By Greg Mersol on April 15, 2020 Posted in FLSA

Grocery stores have taken on special prominence as being on the front lines of the current coronavirus pandemic. Just as that role was becoming apparent, the federal district court in Maryland issued a strong opinion not only denying conditional certification for a class of grocery store managers, but also dismissing many of their claims. In … Continue Reading

Second Circuit Finds That Nurses Are Professionals, Even if They Work for Insurance Carriers

By Greg Mersol on January 30, 2020 Posted in FLSA

Not quite two years ago, the Supreme Court decided the case of Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134 (2018), a case we blogged here. The case itself involved the issue of whether service consultants at auto dealers were exempt from overtime under the FLSA. While the Supreme Court held that they were, … 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

By John Lewis on January 27, 2020 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

Third Circuit Finds Multiple Problems With Certification of Off-the-Clock Claims

By Greg Mersol on January 8, 2020 Posted in Off-the-clock

A recent case from the Third Circuit casts a spotlight on many of the problems inherent in so-called off-the-clock claims for overtime. In Ferreras v. American Airlines, Case No. 18-3143 (3d Cir. Dec. 24, 2019), the plaintiffs claimed that various employer time-keeping policies resulted in employees not being paid for all hours worked. One was … Continue Reading

Second Circuit Finds That Rule 68 Can Be Used To Settle FLSA Claims

By Greg Mersol on December 26, 2019 Posted in FLSA

Many litigants in FLSA cases find practical obstacles in settling the matters, particularly when there are disputes regarding what exactly has happened or when the underlying claim turns out to be very small. This process is made more difficult by the judicial interpretation of the FLSA’s enforcement provision, section 16, which permits the Department of … Continue Reading