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Total Articles: 32

11th Circuit: Putative Opt-in Plaintiffs are Parties to Litigation – Even After Conditional Certification is Denied

In many suits filed as collective actions under the Fair Labor Standards Act (FLSA), individuals hoping to join the action as opt-in plaintiffs submit consents to join the lawsuit even before the named plaintiff moves for conditional certification of the collective. Companies and courts are often unsure how to treat these “putative opt-in” participants before the court certifies any collective action: Are they subject to discovery? If the matter is settled, must they be included? If summary judgment is granted on the named plaintiff’s claims, what happens to the claims of the putative opt-ins? Are they dismissed? With or without prejudice?

Defining Who Is Part of the FLSA Collective Action Party

It is a party that most employers don’t believe is a lot of fun: a FLSA collective action party. In a case of first impression, the Eleventh Circuit addressed the question of whether an opt-in plaintiff is required to do anything beyond filing a written consent to become a party plaintiff in a collective action under the FLSA, 29 U.S.C. §216(b).

Compensation Policies Under Scrutiny: Federal Court Conditionally Certifies Class of Female Faculty Physicians in EPA Case

On September 28, 2017, the U.S. District Court for the Central District of Illinois granted conditional collective action certification in Ahad v. Board of Trustees of Southern Illinois University, a case under the Equal Pay Act (EPA) brought on behalf of female faculty physician employees of the Southern Illinois University School of Medicine and SIU Physicians & Surgeons, Inc.

11th Circuit Holds Rule 23 Class Actions Can Proceed In Same Suit As FLSA Collective Actions

In a case for minimum wage and overtime claims, the Eleventh Circuit joined the D.C., Second, Third, Seventh, and Ninth Circuits in holding that a state-law Rule 23 class action may be maintained in the same proceeding as a Fair Labor Standards Act (“FLSA”) collective action. Calderone, et. al. v. Scott, No. 2:14-cv-00519-JES-CM (11th Cir. Sept. 28, 2016).

Ninth Circuit Issues Surprising Ruling on Class Action Waivers

Today the Ninth Circuit Court of Appeals issued its ruling in Morris v. Ernst & Young, dealing a surprising blow to the enforceability of class and collective action waivers in employment arbitration agreements. More specifically, the Ninth Circuit agreed with the view of the National Labor Relations Board (beginning with the NLRB's D.R. Horton decision) that it is a violation of the National Labor Relations Act (NLRA) for an employer to condition employment on an employee signing an arbitration agreement that waives the employee's ability to pursue claims on a class or collective basis and instead requires that all claims be resolved on an individual basis in arbitration.

Uber’s $100 Million Settlement Falls Apart

In a surprising development, a federal court judge rejected a proposed settlement yesterday which would have seen gig giant Uber pay up to $100 million to resolve a series of legal claims challenging its classification model, characterizing the proposed settlement as “not fair, adequate, and reasonable.” While the shelved deal might end up actually helping Uber in the long run, the latest chapter in this long-running class action battle means that all gig companies will continue to live in a world of uncertainty when it comes to the thorny issue of misclassification.

Uber-Frustrating: Tips to Facilitate Approval of Settlements of Class Actions

On April 21, 2016, Uber tried to buy its peace from two class actions in a $100 million settlement with 385,000 putative class members. See O’Connor v. Uber Technologies Inc., 3:13-cv-03826 (N.D. Cal.); Yucesoy v. Uber Technologies Inc., 3:15-cv-00262 (N.D. Cal.). However, as of July 14, 2016, the class actions still remain open pending court approval of the settlement.

Manhattan Supreme Court Judge Refuses to Certify Class of Interns; Adopts Balancing Test Similar to Second Circuit’s Primary Beneficiary Test

recent New York State Supreme Court decision raises the bar for certifying an “opt out” class of unpaid interns seeking minimum or other wages, and provides valuable guidance for employers facing challenges to their unpaid internship programs. Rodriguez v. 5W Public Relations, Index No. 156571/14 (July 26, 2016). In Rodriguez, Justice Cynthia Kern denied class certification to named plaintiff Kristina Rodriguez and a putative class of individuals who interned with a New York City public relations firm. Rodriguez alleged that, since 2008, she and others were misclassified as unpaid interns when they were actually employees entitled to minimum wage pursuant to the New York Labor Law (“NYLL”) §§ 663 and 198.

Seventh Circuit Voids Employee Promises to Not Pursue Wage and Hour Claims as Members of a Class or Collective Action

Many employers will be surprised to learn that, under some circumstances, the National Labor Relations Act (NLRA) may regulate their ability to enter into certain contractual agreements with employees. The decision of the Seventh Circuit Court of Appeals in Lewis v. Epic Systems Corporation sets the stage for potential review by the Supreme Court of the United States on the issue of the legality of employee waivers of the right to pursue class or collective actions for alleged wage and hour violations.

Ninth Circuit Affirms Dismissal of Wage-Hour Class Action Where Employees Could Edit Their Own Time Entries

In a case that could be of significant benefit to employers in California and elsewhere around the country, the Ninth Circuit Court of Appeals recently affirmed a ruling that plaintiffs failed to satisfy the “commonality” requirement essential to a collective action on their wage-hour claim where they had the authority to edit the time entries that served as the basis for their claim. Coleman v. Jenny Craig, Inc., 2016 U.S. App. LEXIS 7164 (April 6, 2016).

U.S. Supreme Court Finds Representative Statistically-Valid Evidence Supports Wage-Hour Class Certification

In a case for overtime compensation for time spent by workers putting on and taking off protective gear, the U.S. Supreme Court in a 6-2 ruling has upheld the use of representative sampling as evidence for common claims among the class action plaintiffs, workers killing hogs and trimming pork products at processing plants in Iowa. Tyson Foods v. Bouaphakeo, No. 14-1146 (Mar. 22, 2016).

U.S. Supreme Court Finds Representative Statistically Valid Evidence Supports Wage-Hour Class Certification

In a case for overtime compensation for time spent by workers putting on and taking off protective gear, the U.S. Supreme Court in a 6-2 ruling has upheld the use of representative sampling as evidence for common claims among the class action plaintiffs, workers killing hogs and trimming pork products at processing plants in Iowa. Tyson Foods v. Bouaphakeo, No. 14-1146 (Mar. 22, 2016).

Supreme Court Upholds 5.8M Judgment Based on Statistical Analysis

On Tuesday, March 22, 2016, the United States Supreme Court affirmed a $5.8 million dollar judgment against Tyson Foods Inc. in a class and collective action filed by workers claiming uncompensated time donning and doffing time. Contrary to what many predicated given the trend in class action rulings, the Court upheld the workers reliance on statistical analysis that used average time estimates to determine overtime owed for class recovery.

Lack of Time Records? There's an Expert for That – U.S. Supreme Court Reinforces Use of Time Study Experts in Class Certification

Executive Summary: Today, the U.S. Supreme Court held that when an employer fails to create accurate time records, courts may rely on expert time studies not only to determine unpaid hours of work, but also to determine the underlying issue of predominance necessary to certify a class. The Court's opinion declined to restrict the use of damage calculations based on statistical evidence, and said the use of such methods in litigation can be reviewed by courts on a case-by-case basis.

Sixth Circuit Refuses to Apply Stricter FLSA Collective Action Certification Standard

In concluding that the proper standard for certifying Fair Labor Standards Act (FLSA) collective actions is whether the plaintiffs are "similarly situated," the U.S. Court of Appeals for the Sixth Circuit ruled on March 2, 2016, that the Seventh Circuit's application of the stricter Federal Rule 23 class action standard to an FLSA collective action was inappropriate. According to the Sixth Circuit in Monroe v. FTS USA, LLC and UniTek USA, LLC, Congress did not import the Rule 23 predominance requirement into the FLSA, and doing so "would undermine the remedial purpose of FLSA collective actions."

Is Equal Pay the Next Big Thing in Class Actions?

On February 1st, the EEOC announced it would begin requiring employers to submit information on employee wages and work hours broken down by gender, race and EEO-1 category as part of its annual EEO-1 reporting process.

Supreme Court Rejects One Strategy for Defeating Class and Collective Actions

In recent years, one tactic for attempting to defeat wage and hour class and collective action lawsuits class action lawsuits has been to offer the named plaintiffs full relief for their individual claims in the case. Even if the offer is declined, the theory goes, the offer renders those plaintiffs’ claims moot. And under the Supreme Court’s 2013 ruling in Genesis Healthcare v. Symczyck (.pdf), if the named plaintiff’s claims become moot before a class is certified, the case goes away. No class representatives, no class, case dismissed.

Unaccepted Offers of Complete Relief to Named Plaintiff Do Not Moot Class/Collective Claims

Yesterday, the United States Supreme Court issued its opinion in Campbell-Ewald Co. v. Gomez, resolving a split among the federal Circuit Courts of Appeal on the issue of whether an unaccepted Rule 68 offer of judgment to the representative plaintiff in a class or collective action operates to moot the class/collective claims. Over the dissent of three Justices (Scalia, Roberts, and Alito), the majority of the Court applied basic contract law principles to hold that an unaccepted offer of judgment to the named plaintiff does not moot the class/collective claims. The Court reasoned that an offer that is not accepted has no legal effect and thus does not and cannot resolve the individual named plaintiff’s claims in order to render them moot. Under the express language of Federal Rules of Civil Procedure, Rule 68, an offer of judgment that is not accepted within 14 days expires and that is precisly what happened in this case. The defendant made an offer of judgment to the named plaintiff and the plaintiff let the offer lapse by not accepting it within 14 days. Thus, the unaccepted offer did not resolve the named plaintiff’s claims or otherwise eliminate the controversy between the parties. Under this basic contract law reasoning, the Court held that an unaccepted offer similarly does not moot the class/collective claims. The majority of Circuit Courts that have addressed the issue prior to the Campbell-Ewald decision have reached the same conclusion.

Collective Actions Under The FLSA : Up, Up and Away in 2016?

As employers prepare to turn the page on 2015, the question lurks: Will the tide of collective actions and other cases filed under the Fair Labor Standards Act show any signs of ebbing in 2016?

Sixth Circuit Makes It Harder for Employers to Defeat "Bald Assertions" of Wage Violations in Collective Actions

The Sixth Circuit recently issued a decision in Moran v. Al Basit LLC., No. 14-2335 (6th Cir. June 1, 2015), which will make it more difficult for employers to defeat even vague allegations of wage and hour violations in collective actions brought under the Fair Labor Standards Act (“FLSA”).

Supreme Court Takes Aim at FLSA Class, Collective Actions

Last week, the Supreme Court granted a writ of certiorari to Tyson Foods in an appeal of a class and collective action filed under the FLSA and a similar Iowa state law. Hourly workers at Tyson’s Storm Lake, Iowa pork processing plant filed a lawsuit claiming unpaid overtime for time spent donning and doffing personal protective equipment and walking to and from their assigned work stations.

Resource Update: Innovative Strategies for Defending Against the Rising Tide of Wage and Hour Class and Collective Action Claims

Over the last decade, employers increasingly have been bombarded with wage and hour lawsuits filed by current and former employees under the Fair Labor Standards Act (FLSA) and various state law equivalents. Though no talisman exists, it's time for employers to re-emerge from their bunkers, put aside their collective dread, and begin thinking outside the box about how best to protect themselves from the onslaught of wage and hour litigation. While there is no one-size-fits-all solution for every employer in every jurisdiction, the article, "Innovative Strategies for Defending Against the Rising Tide of Wage and Hour Class and Collective Action Claims," available on the In Depth Analysis page of FordHarrison's web site, outlines five innovative strategies to consider implementing at your business: (1) requiring comprehensive timesheet acknowledgments; (2) developing solid wage and hour policies and procedures; (3) mandating arbitration agreements; (4) implementing class and collective action waivers (within or outside of arbitration agreements); and (5) requiring stand-alone jury waivers. One thing is for certain – whether employers implement one of these strategies or try something different, employers must continue to be proactive and creative in the way they defend against wage and hour class and collective action claims.

Court "Certifies" Gawker Media Interns' Collective Action

After more than a year of litigation (the filing of which we reported at the time), former unpaid Gawker Media interns will be permitted to send notices to other unpaid or allegedly underpaid interns to inform those potential plaintiffs of the lawsuit and of the opportunity to join the proceedings.

Second Circuit Enforces Collective/Class Action Waiver and Upholds Mandatory Arbitration Agreements

A recent decision by the Second Circuit Court of Appeals marks a significant victory for employers. Sutherland v. Ernst & Young LLP, which the Second Circuit Court of Appeals decided on August 9, fortifies an employer’s ability to use individual arbitration agreements to avoid wage and hour collective actions under the Fair Labor Standards Act (FLSA).

Second Circuit Upholds Class-Action Waivers in Arbitration Agreements in Certain Circumstances

A recent Second Circuit decision has resulted in a major victory for employers who seek to eliminate class actions and resolve employment disputes through arbitration. In Southerland v. Ernst & Young LLP, Case No. 12-304 (August 9, 2013), the court held that nothing in the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201, et seq. prohibits an employer from including a class action waiver provision in an arbitration agreement. Under this holding, an employee cannot avoid a class-action waiver provision in an arbitration agreement by claiming that the waiver removes the financial incentive for her to pursue a claim under the FLSA. However, the Second Circuit did note that such a provision can be invalidated if it seeks to waive or prohibit the employee’s legal rights.

Supreme Court Holds that "Mere Presence" of FLSA Collective-Action Claims Cannot Save a Lawsuit Where Named Plaintiff's Individual Claims Are Moot

Some good news for employers. In a recent 5-4 opinion, the U.S. Supreme Court held that collective-action claims brought under the Fair Labor Standards Act (FLSA) are moot when the named plaintiff has no continuing personal interest in the outcome of the lawsuit and no motion for conditional certification has been filed. Genesis Healthcare Corp. v. Symczyk, Case No. 11-1059.

Supreme Court Lends Support to Strategy For Curtailing Wage and Hour Collective Actions

Executive Summary: On April 16, 2013, the Supreme Court issued a decision that makes it easier for employers to limit the scope of wage and hour "collective actions." In Genesis Healthcare Corp. v. Symczyk (Apr. 16, 2013), the Court held that an employer can obtain dismissal of an FLSA collective action by mooting the named plaintiff's claims before the trial court rules on a motion for conditional certification.

Maybe Not So Ho Hum at the Supreme Court: FLSA and Wal-Mart v. Dukes

In addition to denying cert on the USERRA hostile environment case (see yesterday's post), the Supreme Court yesterday also reversed an FLSA case from the 9th Circuit:

First Circuit Clears the Way for Skycaps to Pursue Nationwide Class Action Alleging Common Law Claims Involving Baggage Fees

In a three-judge panel decision issued on September 6, 2011 in Overka v. American Airlines, No. 10-8004, the First Circuit Court of Appeals let stand the expansive February 4, 2010 decision issued by U.S. District Court Judge William G. Young certifying a nationwide class of skycaps who claim that a $2 per bag service fee imposed by American Airlines unlawfully deprived them of tips. Judge Young’s 2010 class certification decision clears the way for skycaps at airports across the county to challenge American Airlines’ service fee practice on a class-wide basis on theories of unjust enrichment and tortious interference with contractual or advantageous relationship under the common law of 34 different jurisdictions from coast to coast.

What Wal-Mart v. Dukes Means for Wage & Hour Law, Employers

By now most of you who follow developments in employment law have likely heard about and possibly read the U.S. Supreme Court's decision in Wal-Mart v. Dukes, overturning certification of a class action sex discrimination case brought on behalf of 1.5 million current and former female Wal-Mart employees. (If not, our recent FR Alert on this case will get you up to speed.) While Dukes is a sex discrimination case, it is likely to have a major impact upon class actions in other areas of the law, including wage and hour lawsuits.

Recent Trends in FLSA Hybrid Collective/Class Actions

In 2008, 5,302 suits were filed under the Fair Labor Standards Act (FLSA) in the nation’s federal courts. Statistics Div., Admin. Office of the U.S. Courts, Federal Judicial Caseload Statistics. By 2010, that number had jumped to 6,081. One source of the uptick appears to be the flood of “hybrid” actions, in which plaintiffs assert violations of state wage and hour laws, styled as purported Rule 23 class actions, and FLSA claims, which must be brought as a collective action.

Class Claims of Pay Discrimination After Ledbetter.

The Supreme Court’s Ledbetter decision invalidates traditional class claims of pay discrimination and the Office of Federal Contract Compliance Programs' (OFCCP) pay discrimination standards.
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