Tag Archives: FLSA

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

John LewisBy John Lewis on Posted in Arbitration, Independent Contractors
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

Greg MersolBy Greg Mersol on Posted in Class Certification, FLSA
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

John LewisDustin DowBy John Lewis and Dustin Dow on Posted in FLSA, Rule 23
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

The Fifth Circuit Addresses an Issue That Refuses to Die: Who Determines Whether Class or Collective Arbitration Is Available?

John LewisBy John Lewis on Posted in Arbitration, FLSA
  We opined on several occasions that cases dealing with a party’s entitlement to class or collective arbitration were a dying breed because of the increased use of class action waivers. And we have been proven wrong by several subsequent decisions. (See our November 11, 2013, March 12, 2015 and September 9, 2015 blog articles … Continue Reading

Court Grants Summary Judgment for Employer in Apple Class Action Seeking Pay for Time Spent in Security Checks

Greg MersolBy Greg Mersol on Posted in FLSA
Free Choice Tanks Plaintiffs’ Claims Just last year, the Supreme Court held in Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (2014) that employees working at an Amazon.com warehouse were not entitled to overtime pay for time they spent in exit security checks designed to ensure that they were not taking company product … Continue Reading

Justices Take On Another California Rule – When an Arbitration Agreement Is Too Flawed to Enforce

John LewisBy John Lewis on Posted in Arbitration, Independent Contractors
The U.S. Supreme Court has agreed to review whether the Federal Arbitration Act (FAA) preempts a California state court rule on unconscionable provisions that is purportedly applied more stringently to arbitration agreements than to other contracts. Under the California rule, arbitration agreements with more than one unconscionable provision may not be enforced despite an express … Continue Reading

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

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

DOL Memo Provides Script for FLSA Collective Actions Alleging Independent Contractor Misclassification

Todd LebowitzBy Todd Lebowitz on Posted in FLSA, Independent Contractors
The all-time best The Far Side cartoon (based on an unscientific survey, sample size of me) is the one with two deer standing in the forest, one with a red circular target imprinted on its chest. The other deer says, “Bummer of a birthmark, Hal.” Poor Hal. Blessed with the ability to walk upright, but … Continue Reading

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

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

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

Opalinski v. Robert Half International, Inc. — A Footnote in a Prior Opinion Doesn’t Signal the Supreme Court’s Willingness to Resolve Who Decides the Availability of Class Arbitration

John LewisBy John Lewis on Posted in Arbitration, FLSA
After reading the Supreme Court’s opinion in Oxford Health Plans, LLC v. Sutter, 133 S. Ct. 2064 (2013), some might have concluded that the Court was ready to resolve who determines the availability of class arbitration court or arbitrator — in the right case. See 133 S. Ct. at 2068 n.2. But on March 9, … Continue Reading

Nevada Supreme Court Finds Class of Strippers Were Employees

Greg MersolBy Greg Mersol on Posted in FLSA, Independent Contractors, Wage and Hour
Given the extensive use of euphemisms in the exotic dancing trade, we’ll apologize in advance for any unintended puns. We’ve written on the issue of the classification of exotic dancers or strippers in the past [April 8, 2011, October 19, 2011, November 21, 2012], but the question continues to ripple through the courts.  While the … Continue Reading

Ohio District Judges Puts an End to Nationwide FLSA Collective Action Brought Against Lowe’s

Gilbert BroskyBy Gilbert Brosky on Posted in Collective Action, FLSA, Retail
While we have occasionally bemoaned the lenient conditional certification standard in FLSA collective actions, as the recent case of Triggs v. Lowe’s Home Centers, Inc., No. 1:13-cv-1897 (N.D. Ohio Aug. 19, 2014) shows, not all courts are willing to rubberstamp collective actions onto the second stage of litigation. The six plaintiffs in Triggs were former … Continue Reading

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

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

Court Sends Plaintiffs Back to the Locker Room Unhappy When It Denies Conditional Certification

Jeffrey VlasekBy Jeffrey Vlasek on Posted in Conditional Certification, FLSA
In January 2014, NFL Commissioner Roger Goodell raised eyebrows (and ire) when he announced that the league was considering eliminating the extra point after a touchdown.  As Goodell put it, “the extra point is almost automatic,” given that it is kicked from the twenty yard line, and it is exceptionally rare that a professional NFL … Continue Reading

Minnesota District Court Rejects Nationwide Scope and Conditionally Certifies Class of One Chipotle Store

Greg MersolBy Greg Mersol on Posted in Conditional Certification, FLSA, Retail
Employees win most motions for conditional certification under the FLSA, with many courts declining to perform a probing analysis at that stage.  A recent case from the District of Minnesota, in which the court still applied a deferential standard, had the unusual result that the court granted conditional certification as to a single Chipotle store … Continue Reading

New York District Court Conditionally Certifies Class of Interns

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

Court Rejects Pseudo-Expert Reports and Refuses to Certify Off-the-Clock Case

Greg MersolBy Greg Mersol on Posted in Class Certification, FLSA, Off-the-clock
Off-the-clock cases involving call centers have been in vogue for a number of years despite lingering issues regarding whether they can truly be resolved on a class-wide basis.  A recent case from the District of Maryland, Faust v. Comcast Cable Communications Management, LLC, Civil Action No. WMN-10-2336 (July 15, 2014), suggests that they cannot.  Further, … Continue Reading

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

By 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

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

By 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
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