Tag Archives: wage and hour

Supreme Court Holds Prejudice Not Required for Waiver of Right to Arbitrate – But Does Little Else

Photo of Greg MersolBy Greg Mersol on Posted in Arbitration
In a much-anticipated opinion, the Supreme Court unanimously held this morning that a party claiming waiver of the right to arbitrate need not show prejudice, in Morgan v. Sundance, Inc., Case No. 21-328 (May 23, 2022). While the holding on this point is clear, the Court very explicitly declined to address a series of related … Continue Reading

Ninth Circuit Rejects Airline’s Constitutional Challenges to California’s Wage Statement Statute

Photo of Matthew GoodmanBy Matthew Goodman on Posted in Wage and Hour
Virtually by definition, many transportation workers, and many employees of airlines and railroads in particular, regularly travel and work in many states. For the most part, that does not impede their work or their employers’ businesses, but what if one state’s laws (read California’s) are unusually burdensome? That issue arose in a pair of class … Continue Reading

Ninth Circuit Holds Employee Expense Per Diem Can Constitute ‘Wages’ to Determine the Regular Rate

Photo of Joseph S. PersoffBy Joseph S. Persoff on Posted in Wage and Hour
In a case involving two certified classes, the Ninth Circuit Court of Appeals concluded this week that an employer’s per diem paid to traveling employees to reimburse for the cost of meals, incidentals and housing while working away from home can constitute a “wage.” Clark v. AMN Services, LLC, Case No. 19-55784 (9th Cir., Feb. 8, 2021). … Continue Reading

Travel Time Compensable Under California Law Despite Contrary Union Agreement

Photo of Todd DawsonBy Todd Dawson on Posted in Wage and Hour
While California’s wage-and-hour rules recognize a number of exceptions for employees subject to a collective bargaining agreement, the California Supreme Court’s denial of review in Gutierrez v. Brand Energy Svcs. of Calif. is a reminder that such exceptions are not without limits. Case No. A154604, review denied 9/9/20. The California wage order at issue in … 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

What’s Ahead at the Supreme Court?

Photo of John LewisBy John Lewis on Posted in Supreme Court
There are at least four cases now before the U.S. Supreme Court that may be of significant interest to employers. Three were argued in October 2018, and certiorari was granted in the last case on Dec. 10. The Three Cases Already Argued The three cases argued all involve arbitration. The first, New Prime Inc. v. … 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

Do Daubert standards apply at the certification stage? Ninth Circuit splits with itself

Photo of Greg MersolBy Greg Mersol on Posted in Class Certification, Wage and Hour
It is fitting that the day after Halloween the Ninth Circuit issued its denial of rehearing en banc in Sali v. Corona Regional Medical Center, Case No. 15-56460, because the issue it raises, like Michael Myers in the Halloween movie series, should have been dead long ago. We’ve blogged the issue of whether Daubert standards … Continue Reading

California Court of Appeals Affirms Employer Class Action Wage and Hour Win at Trial

Photo of Greg MersolBy Greg Mersol on Posted in Class Action Litigation, Wage and Hour
Employer Performance-Based Rate Scheme for Automobile Repair Upheld Under California Law With many of the easy targets for wage and hour matters gone (e.g., misclassification of assistant managers), plaintiffs’ counsel have increasingly turned to technical overtime or minimum wage violations as a vehicle to bring class or collective action litigation. As a recent claim reflects, … Continue Reading

Washington Court Denies Plaintiffs’ Motion for Summary Judgment on Various Overtime Issues

Photo of Greg MersolBy Greg Mersol on Posted in Wage and Hour
Overconfidence won’t overcome questions of fact Most practitioners and human resource professionals are already familiar with the increasingly difficult wage and hour laws in California and its “Mini Me” to the east, New York state. But some other states, including Oregon and Washington, have their own unique – though perhaps less burdensome – overtime laws. … Continue Reading

Courts Deny Certification for Adequacy of Representation in Second Class Action

Photo of Greg MersolBy Greg Mersol on Posted in Class Action Litigation, Collective Action, Wage and Hour
One of the tactics in the current plaintiffs’ wage and hour playbook is to bring a second claim after settlement of an initial class or collective action lawsuit. In these cases, the second set of claims is purportedly brought on behalf of those who did not opt in or participate, or it is for alleged … Continue Reading

Second Circuit Affirms Summary Judgment in Putative Internship Class

Photo of Greg MersolBy Greg Mersol on Posted in FLSA, Wage and Hour
Four years ago, a wave of cases involving unpaid internships looked to be the next “big thing.” As those cases sputtered, however, and employers reduced or eliminated internships, the flood of anticipated litigation never fully materialized. Many targets of these claims simply settled, but a small number of these cases continued to be litigated. In 2012, … Continue Reading

The Ninth Circuit Rules That both an Arbitrator and a Trial Court May Have a Role in a Case with Individual and PAGA Claims

Photo of John LewisBy John Lewis on Posted in PAGA
Employers, plaintiffs, and courts continue to grapple with the difficult issue of the interplay between the California Private Attorneys General Act (“PAGA”) and arbitration agreements. We’ve addressed these issues several times on this blog, including a March 30, 2017 blog in which we discussed the case of Hernandez v. Ross Stores, Inc., No. E064026, 2016 … Continue Reading

California Supreme Court Denies Sequenced Discovery in Representative PAGA Action

Photo of John LewisBy John Lewis on Posted in PAGA, Wage and Hour
On July 13, 2017, the California Supreme Court rejected lower court holdings that limited an employee’s ability to secure statewide employee contact and employment information in a representative PAGA action, when the plaintiff only worked in one of the employer’s stores. In Williams v. Superior Court of Los Angeles County (Marshalls of CA, LLC), Case … Continue Reading

Judges Refuse Certification of Off-the-clock Wage and Hour Cases

Photo of Greg MersolBy Greg Mersol on Posted in Wage and Hour
Employees at O’Hare Encounter Delays of a Different Kind The Northern District of Illinois has now either decertified or refused to certify two “off the clock” cases involving hourly workers at O’Hare Airport. Neither case involves O’Hare employees per se, but both involve large contractors and highlight the pitfalls for plaintiffs in large off-the-clock cases. … Continue Reading
LexBlog