Tag Archives: FLSA

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

Federal Courts Continue To Find Claims Adjusters Exempt

Gilbert BroskyBy Gilbert Brosky on Posted in FLSA
We have previously discussed how, over the past 10+ years, courts have increasingly recognized that insurance claims adjusters are exempt under the Fair Labor Standards Act (FLSA).  The recent cases of Estrada v. Maguire Ins. Agency, Inc., 12-cv-604 (E.D. Penn. Feb. 28, 2014) and Locke v. Am. Bankers Ins. Co. of Florida, 12-cv-1430 (E.D. Cal. … Continue Reading

Eighth Circuit Affirms Summary Judgment On Overtime Claims For Class of Tax Professionals

Greg MersolBy Greg Mersol on Posted in FLSA, Overtime Claims, Rule 23
Relatively few FLSA cases are certified and then reach a court of appeals on the merits, but that recently happened before the Eighth Circuit.  In Petroski v. H&R Block Enterprises, LLC, Case No. 13-2076 (8th Cir. May 2, 2014), the plaintiffs were tax preparers who worked for H&R Block.  They brought suit under the FLSA … Continue Reading

Eleventh Circuit Refuses to Enforce Post-Suit Arbitration Agreements Based upon Employer Misconduct

Greg MersolBy Greg Mersol on Posted in Arbitration, FLSA, Retail
The British have a phrase “too clever by half” to describe complex schemes that ultimately won’t work. We all know from cases such as Concepcion, Stolt-Nielsen, Italian Colors, and their progeny that arbitration agreements are far more likely to be enforced today than only a year or two ago, particularly in the class action context.  … Continue Reading

California District Court Disqualifies Class Counsel for Conflict of Interest

Greg MersolBy Greg Mersol on Posted in Collective Action, FLSA, Rule 23, Wage and Hour
Is more of a good thing a better thing?  In some contexts, not, as reflected by a recent case from the Northern District of California.  In Lou v. Ma Laboratories, Inc., Case No. C 12-05409 WHA (N.D. Cal. Jan. 8, 2014), the plaintiffs brought two class or collective actions against the same employer for claimed … Continue Reading

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

By 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

By 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

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

Employers Win Some, Lose Some, in California Cases Started Prior to Dukes

Greg MersolBy Greg Mersol on Posted in FLSA, Meal and Rest Periods, Rule 23
Despite blockbuster cases like Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), and Brinker Rest. Corp. v. Superior Court, 273 P.3d 513, 527 (Cal. 2012), California remains a hotbed of employment class litigation as a recent spate of cases reflects.  The Dukes case and others have certainly helped to level the playing field … Continue Reading

New York District Court Denies Certification and Conditional Certification of Class of Personal Bankers

Greg MersolBy Greg Mersol on Posted in Class Certification, FLSA, Nonexempt Status, Wage and Hour
One can only imagine the outcome the plaintiffs’ attorneys were anticipating:  a case against the financial industry, involving non-exempt employees subject to an auto-deduct policy for meal periods, in the Southern District of New York.  It seems like a laundry list of many types of claims that have been certified, and they no doubt expected … Continue Reading

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

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

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

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

The Southern District of New York Rules That Internships Must Be Educational (Unlike the Vince Vaughn and Owen Wilson Film of the Same Name)

Jeffrey VlasekBy Jeffrey Vlasek on Posted in FLSA, Wage and Hour
It has been said that the vast majority of movies coming out of Hollywood these days are “brainless.”  Despite that (often accurate) description, there are always a handful of films that manage to squeak into theaters and earn critical praise for their intelligent, thought-provoking stories, and educate the audience on a particular subject matter or character.  … Continue Reading
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