Greg Mersol

Greg Mersol

BakerHostetler

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Arizona District Court Rejects Joint Employer Arguments in Independent Contractor Case Alleging Misclassification of Truck Drivers

A month ago we discussed the Ninth Circuit’s decision in Ruiz v. Affinity Logistics Corp., Case No. 12-56589 (9th Cir. June 16, 2014), in which the employer treated its delivery drivers as employees in everything but name,...more

7/21/2014 - Class Action Delivery Drivers Employee Definition Employer Liability Issues FLSA Independent Contractors Misclassification Over-Time Trucking Industry Unpaid Overtime

Eighth Circuit Affirms Summary Judgment On Overtime Claims For Class of Tax Professionals

Relatively few FLSA cases are certified and then reach a court of appeals on the merits, but that recently happened before the Eight Circuit. In Petroski v. H&R Block Enterprises, LLC, Case No. 13-2076 (8th Cir. May 2, 2014),...more

5/23/2014 - Class Action Class Certification Employee Definition FLSA H&R Block Hiring & Firing Tax Preparers Training Wage and Hour

Florida District Court Rejects ERISA Claims Premised on Alleged FLSA Violations

Plaintiffs in most class and collective actions try to plead their claims in such a way as to exert the maximum pressure against the employer. In some instances, that raises the issue of whether the plaintiff should assert...more

5/9/2014 - Employer Liability Issues ERISA FLSA Human Resources Professionals Lowes Misclassification Recordkeeping Requirements Retirement Plan

The Supreme Court’s Sandifer Decision and Collective Actions

Last week, the Supreme Court decided the case of Sandifer v. United States Steel Corp., Case No. 12-417 (Jan. 27, 2014), addressing donning and doffing claims in the context of a unionized steel mill. That case not only...more

2/5/2014 - Collective Bargaining FLSA Protective Gear Sandifer v U.S. Steel Corp SCOTUS Unions Wage and Hour Workplace Attire

California District Court Rejects FLSA Settlement Due to 78% Fee Award

Without settlements, class action litigation would likely grind the work of our nation’s courts to a halt. One impediment, however, to settlement in many cases is the amount of attorney fees. Particularly in smaller cases, or...more

12/19/2013 - Attorney's Fees Class Action FLSA Settlement

New York District Court Grants Summary Judgment Against FLSA Class of Insurance Claims Adjusters

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

11/25/2013 - Claims Adjusters Class Action Class Certification FLSA GEICO Summary Judgment

Employers Win Some, Lose Some, in California Cases Started Prior to Dukes

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

10/31/2013 - Class Action Class Certification CVS Dukes v Wal-Mart FLSA FRCP 23(b)(3) Rest and Meal Break Rule 23

New York District Court Denies Certification and Conditional Certification of Class of Personal Bankers

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

9/11/2013 - Class Action Class Certification Dukes v Wal-Mart FLSA Non-Exempt Employees Rest and Meal Break Wage and Hour

Third Circuit Finds That Putative Class Representatives Could Not Challenge Decertification Of An FLSA Collective Action Once They...

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

9/9/2013 - Class Action Class Certification Class Representatives Collective Actions Decertify Dismissals Employer Liability Issues FLSA

Fifth Circuit Applies Fluctuating Work Week in FLSA Misclassification Case

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

9/1/2013 - FLSA Fluctuating Workweek Misclassification

Virginia District Court Denies Conditional Certification of FLSA Case

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

8/15/2013 - Class Certification Damages Dukes v Wal-Mart FLSA Unpaid Overtime

California District Court Compels Arbitration of Class and Collective Wage and Hour Claims

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

7/12/2013 - American Express American Express v Italian Colors Restaurant Arbitration AT&T Mobility v Concepcion Class Action Collective Actions Collective Bargaining Employer Liability Issues Ernst & Young FLSA NLRB SCOTUS Wage and Hour

Southern District of New York Denies Conditional Certification in Misclassification Case

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

6/26/2013 - Class Action Class Certification FLSA Misclassification

Court Partially Dismisses and Denies Conditional Certification In Tip-Credit Case

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

5/23/2013 - Conditional Certification FLSA Tip Credit Wages

Ninth Circuit Finds Rule 23 Class Actions and FLSA Collective Actions Compatible

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. ...more

4/19/2013 - Class Action Collective Actions FLSA Rule 23

Supreme Court Upholds Use of Rule 68 Offers of Judgment in FLSA Collective Actions

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

4/19/2013 - Collective Actions FLSA Genesis HealthCare Genesis Healthcare Corp. v. Symczyk Mootness Rule 68 SCOTUS

Sixth Circuit Affirms Defense Verdict In FLSA Case Involving Insurance Investigators

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

3/22/2013 - Administration-Production Dichotomy Administrative Exemption DOL FLSA Insurers

Missouri Court Denies Conditional Certification Of Off-The-Clock Case

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

2/25/2013 - Class Action Class Certification FLSA General Electric Off-The-Clock Over-Time Wage and Hour

Ohio District Court Denies Conditional Certification In FLSA Case

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

2/18/2013 - Class Action Class Certification Conditional Certification FLSA Off-The-Clock Unpaid Overtime Wage and Hour

Ohio District Court Decertifies Class of Health Care Workers in Meal Break Case

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

2/12/2013 - Auto-Deduct Policy Class Action Class Certification Decertify FLSA Healthcare Professionals Rest and Meal Break

The Debate Continues: Recent Eighth Circuit Decision Adds to the Growing Tension between Federal Courts and the NLRB Regarding the...

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

1/30/2013 - Arbitration Arbitration Agreements Class Action Class Action Arbitration Waivers FLSA NLRB Owen v Bristol Care

Maryland Court Grants Summary Judgment In Unpaid Leave Policy Case

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

12/21/2012 - Class Action FLSA Summary Judgment Unpaid Leave Wage and Hour

Court Denies Conditional Certification of Class of Debt Collectors

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

12/17/2012 - Class Action Class Certification Debt Collectors FLSA Off-The-Clock

Court Denies Conditional Certification of Proposed Class of Retail Representatives

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

12/1/2012 - Class Action Class Certification FLSA Retail Market

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