Greg Mersol

Greg Mersol


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Subway Adopts Novel Approach to Stem Wage and Hour Claims

Subway is one of the largest franchisors in the world, with over 26,000 restaurants in the United States alone. It is also in one of the industries most prone to wage and hour claims, a fact reflected in both Department of...more

8/15/2016 - DOL FLSA Franchisee Joint Employers NLRB Subway Wage and Hour

District Court Denies Conditional Certification of Off-the-Clock Case Despite Bad Emails

“As far as overtime, you (like I) can only bill a 40hr work week even though we put in like 60hrs at times.” This isn’t exactly the email you want to see if you are defending an off-the-clock wage and hour claim, but...more

6/3/2016 - Bank of America Class Action Conditional Certification Corporate Counsel FLSA Wage and Hour

Statistics in Wage and Hour Class Actions: Has Anything Really Changed?

Statistics are kind of a holy grail of class action litigation. Everyone seems to know that they exist, but their understanding is shadowy and the quest to find valid statistical models often proves elusive. Last month’s...more

4/25/2016 - Class Action Class Representatives FLSA SCOTUS Statistical Sampling Tyson Foods v Bouaphakeo Wage and Hour

New York District Court Grants Summary Judgment for Employer in Gawker Intern Case

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...more

4/6/2016 - Class Action Class Certification Employer Liability Issues FLSA Gawker Minimum Wage Rule 23 Social Media Summary Judgment Unpaid Interns Unpaid Overtime Wage and Hour

Sixth Circuit Grants Summary Judgment as to Class, Based on FLSA Agriculture Exemption

Is the saying “fish or cut bait” dead? If you are ever in need of sleep, pull out your copy of the U.S. Code and traipse through the exemptions contained in section 13 of the FLSA, 29 U.S.C. § 213. We’re all familiar with the...more

10/6/2015 - Agricultural Workers Class Action Collective Actions Exempt-Employees Exemptions Farms Fishing Industry FLSA

Eleventh Circuit Rejects DOL Test in Internship Collective Action

It is almost an axiom that the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., passed in 1938, is out of date. Despite modest tweaks since the time it was enacted, a particularly dark time in the Great Depression, it is...more

9/25/2015 - Collective Actions DOL Employee Training FLSA Internships Misclassification Nurses SCOTUS Unpaid Interns Wage and Hour

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

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...more

8/28/2015 - Class Action Collective Actions FLSA Human Resources Professionals Lowe's Putative Class Actions Settlement Agreements

Supreme Court Agrees to Hear Case Addressing Scope of Wage and Hour Class and Collective Actions

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...more

6/11/2015 - Calculation of Damages Certiorari Class Action Class Certification Collective Actions Damages Employer Liability Issues Federal Rules of Civil Procedure FLSA Rule 23(b)(3) SCOTUS Tyson Foods Tyson Foods v Bouaphakeo Wage and Hour

Unanimous Supreme Court Finds Security Screening Time NOT Compensable

Security screening has become more common over the past decade, both to promote security for some employers and to deter employee theft for others. A growing issue in wage and hour law, at least until this morning, was...more

12/10/2014 - FLSA Integrity Staffing v Busk Putative Class Actions SCOTUS Security Checks Wage and Hour

Third Circuit Affirms Dismissal of Class Allegations for Vague Pleading

Whenever I see the names of the Iqbal and Twombly pleading cases, I can’t help but feel that the names were clipped from lost lines of Lewis Carroll’s Jabberwocky poem, perhaps as something similar to “Iqbal were the Civil...more

9/18/2014 - Appeals Class Action Dismissals Employer Liability Issues FLSA Hospitals Wage and Hour

New York District Court Conditionally Certifies Class of Interns

In Mark v. Gawker Media LLC, Case No. 13-cv-4347(AJN) (S.D. N.Y. Aug. 15, 2014), Gawker became the subject of yet another in a line of cases involving unpaid interns. Four interns brought suit under the FLSA, contending that...more

8/21/2014 - Class Action Employer Liability Issues FLSA Gawker Social Networks Unpaid Interns Wage and Hour

Sixth Circuit Refuses to Uphold Collective Action Waiver Absent Arbitration

My working title for this blog was “collective action grab bag,” concerning the recent Sixth Circuit case in Killion v. KeHE Distributors, LLC, Case Nos. 12-3357/4340 (6th Cir. July 31, 2014). I went with the title that...more

8/11/2014 - Arbitration Arbitration Agreements Class Action Arbitration Waivers Employer Liability Issues FLSA Hiring & Firing Interlocutory Appeals Jurisdiction Retailers Unpaid Overtime Wage and Hour

Second Circuit Finds Auditors Exempt and Endorses Limits on Class Discovery

While the number of class or collective action lawsuits has exploded, decisions from Circuit Courts of Appeal, particularly on procedural issues, are still infrequent enough to warrant comment. In Pippins v. KPMG, Case No....more

7/29/2014 - Accountants Appeals Auditors Class Action Corporate Counsel Discovery Employer Liability Issues Exemptions FLSA KPMG

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

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