Tag Archives: FLSA

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

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

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

Louisiana District Court Decertifies FLSA Class of Warehouse Supervisors

We’ve noted many times that while employees prevail on most motions for conditional certification under the FLSA, employers tend to prevail on the second stage motion for decertification. A recent case reflects that continuing reality, but also highlights weaknesses in the two-stage paradigm that work to the disadvantage employers irrespective of the merits (or lack … Continue Reading

District Court Refuses Conditional Certification of “Policy to Violate the Policy” Case

In collective actions under the FLSA, courts typically apply a lower standard to the first “conditional certification” stage. In some cases, that might be warranted, but in many instances courts will undertake an unduly lenient review and conditionally certify cases that have no business proceeding as a class and have no realistic prospect of surviving … Continue Reading

District Court Decertifies FLSA Collective Action With Independent Contractor Issues

We’ve commented many times before that relatively few collective actions survive the “second stage” motion to decertify or, relatedly, an unofficial “third stage” when the trial court actually considers how the matter will be managed at trial. Here is another variation on that theme – an unusual case involving a lender’s claimed involvement in the … Continue Reading

Missouri District Court Decertifies FLSA Class of IT Workers

We’ve noted before that while conditional certification motions are often granted, such classes fare far less well at the second decertification stage and just as poorly on the eve of trial. See: “Ninth Circuit Affirms Decertification of FLSA Off-the-Clock Case” from Sept. 21, 2018, and “Ohio District Court Decertifies Class of Health Care Workers in … Continue Reading

Fifth Circuit Addresses Notices of Collective Action for Those Who Signed Arbitration Agreements Requiring Only Individual Claims

The intersection of Fair Labor Standards Act (FLSA) collective action procedures and employee arbitration agreements waiving aggregate actions has led to differing approaches among the district courts. In JPMorgan Chase & Co. (Case No. 18-20825, decided Feb. 21, 2019), the Fifth Circuit found that a district court does not have “discretion to send or require … Continue Reading

Another Court Rejects Class Claims Contending That Vocational Students Are Really Employees

In yet another challenge regarding the employment status of students and interns as employees, the Second Circuit has concluded quite rightfully that vocational students – even those at for-profit institutions – are still students. We’ve seen this argument before in the context of both students and interns. (November 15, 2018, December 12, 2017, and May … Continue Reading

District Court Decertifies Hostile Environment Sexual Harassment Suit Against Trucking Company

Most employment class actions today are wage and hour matters, but class actions for alleged discrimination are still brought and can present their own unique challenges for both plaintiffs and the defense. Apart from the procedural differences between Fair Labor Standards Act collective actions and Rule 23 class actions, one key difference between wage and … Continue Reading

Third Circuit Reverses Rule 23 Certification in ‘Off the Clock’ Case

Ruling also touches upon FLSA conditional certification order Many wage and hour cases filed today try to name popular targets and to rely upon tried and true allegations. Unfortunately for employers, this is at times a successful playbook, particularly when settlement is the primary goal. That approach, however, doesn’t always work, particularly if the district … Continue Reading

Central District of California Denies Certification in Mortgage Loan Officer Case

FLSA Conditional Certification Denied Too The position of mortgage loan officer has been a fertile source of wage and hour claims, but a recent case from the Central District of California reflects that certification of a class, even involving such a “target” position, is by no means guaranteed. In Fernandez v. Bank of America, Case … Continue Reading

Ninth Circuit Affirms Decertification of FLSA Off-the-Clock Case

No, that isn’t a typo – it was the Ninth Circuit. Those familiar with collective action litigation are already familiar with the two-step paradigm most courts use to evaluate collective action claims. In the first stage, commonly misnamed “conditional certification,” the court determines whether to authorize notice to the putative class. In doing so, most courts … Continue Reading

Supreme Court Exemption Decision Could Have Broader Repercussions

Need FLSA exemptions be narrowly construed? On April 2, the United States Supreme Court issued its decision on the issue of whether the Fair Labor Standards Act’s (FLSA) exemption for those selling or servicing automobiles at car dealerships applied to service consultants. Encino Motorcars, LLC v. Navarro, Case No. 16-1362 (Apr. 2, 2018). Unless you … Continue Reading

Minnesota Court Cuts Proposed Attorney Fee Award From $3.2 Million to $600,000 in Off-the-Clock Case

In 2014, five law firms brought a claim for alleged off-the-clock work. As discovery revealed, the claims all arose out of conduct involving a single shift supervisor at a single restaurant, and the conduct was disputed at that. Although the allegations related to a low-level supervisory employee, the plaintiff firms then spent considerable time and expense … Continue Reading

Independent Contractor Trucker Dodges FAA Arbitration and Keeps His Class Action Alive

In Oliveira v. New Prime, Inc., No. 15-2364 (May 12, 2017), the U.S. Court of Appeals for the First Circuit confronted two arbitration-related questions of first impression in that Circuit.  In the case, Dominic Oliveira had signed an Independent Contractor Operating Agreement with New Prime, Inc., which contained an arbitration provision governed by the Commercial … Continue Reading

New York District Court Grants Summary Judgment for Employer in Gawker Intern Case

Litigation Over Interns Dries Up Internship Opportunities The natural and probable consequence of litigation over unpaid internships was that such opportunities would disappear because the risk of litigation for even a legitimate program would outweigh the likely benefit. The result of the much-touted Gawker intern litigation underscores that reality. We’ve blogged about the Gawker intern … Continue Reading

Tyson Foods, Inc. v. Bouaphakeo: The Supreme Court Produces a Narrow Holding Involving FLSA Precedent and Rule 23 Principles

Employees have been bringing wage-and-hour collective actions since long before class procedures were officially integrated into the Federal Rules of Civil Procedures in 1966. Section 16(b) of the Fair Labor Standards Act (FLSA) permitted collective actions when it was passed in 1938. In 1946, the Supreme Court in Anderson v. Mt. Clemens Pottery Co., 328 … Continue Reading
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