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...more
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...more
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...more
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...more
You might want to grab a calculator, or at least some strong coffee, before reading this.
If an employee or group of employees have been found to have been misclassified as exempt, are they entitled to time-and-a-half...more
A Virginia District Court has denied conditional certification of a class of chauffeurs in claims for unpaid overtime and has also recognized the application of Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), to the...more
Dorothy Gale famously remarked upon finding herself in Oz “Toto, I’ve got a feeling we’re not in Kansas anymore.” Class action wage and hour plaintiffs on the west coast are now awakening to the fact that while they may still...more
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,...more
Anyone who has dined at a restaurant is aware of the importance of tipping, even if the exact rules, like the percentage and how it should be calculated, may be a bit fuzzy at times. From the standpoint of the restaurant,...more
As we’ve noted before, circuit court authority on collective action issues is relatively sparse. Although we like to comment on such cases, the most recent such opinion is in many respects a nonevent.
Today the United States Supreme Court delivered an unexpected present to employers facing FLSA collective actions and held that a defendant may moot such a case by making a Rule 68 offer of judgment to the named plaintiff....more
Is It Time To Deep-Six The “Administration-Production” Dichotomy?
There is a very funny set of books under the title “Unuseless Japanese Inventions” by Kenji Kawakami. The books depict, in a matter-of-fact fashion, a...more
In some respects, one of the most difficult types of wage and hours lawsuits are so-called “off-the-clock” cases in which the employer has promulgated lawful time-keeping and compensation policies, but the plaintiffs contend...more
We’ve commented before that while most courts apply a fairly lenient standard at the “conditional certification” phase of Fair Labor Standards Act collective action litigation, plaintiffs tend to have a harder time in...more
We’ve commented several times in the past on the importance of the second phase of the two-step procedure now commonly employed by district courts in Fair Labor Standards Act cases. Under that procedure, courts will...more
Much like a war where each side steadily amasses victories and defeats, the federal courts and the National Labor Relations Board (NLRB) continue to have diverging opinions on the enforceability of class action waivers in...more
What do you do if you if you want to cash in on the recent flood of wage and hour class and collective actions, but the employer’s policies are actually lawful?...more
If someone with too much time on their hands tried to catalogue all of the decisions regarding conditional certification of proposed FLSA class actions, they would likely find that while plaintiffs prevail at this stage more...more
We’ve written several times in the past about the two-step procedure now in vogue for the handling certification of collective actions under section 16(b) of the FLSA....more