Tag Archives: FLSA

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

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

Photo of 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

Photo of 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

Photo of 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

Photo of 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

Photo of 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
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