Tag Archives: FLSA

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

Photo of Greg MersolBy Greg Mersol on Posted in FLSA
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

Photo of Greg MersolBy Greg Mersol on Posted in FLSA
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

Photo of Greg MersolBy Greg Mersol on Posted in FLSA
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

Photo of John LewisBy John Lewis on Posted in Arbitration Agreements, FLSA
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

Photo of Greg MersolBy Greg Mersol on Posted in FLSA
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

Photo of Greg MersolBy Greg Mersol on Posted in FLSA, Rule 23
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

Photo of Greg MersolBy Greg Mersol on Posted in FLSA, Rule 23
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

Photo of Greg MersolBy Greg Mersol on Posted in FLSA, Wage and Hour
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

Photo of Greg MersolBy Greg Mersol on Posted in Collective Action, FLSA
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

Photo of David GrantBy David Grant on Posted in FLSA
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

Photo of Greg MersolBy Greg Mersol on Posted in Off-the-clock
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

Photo of 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

Photo of 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

Photo of John LewisPhoto of Dustin 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?

Photo of 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

Photo of 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

Photo of 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
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