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Massachusetts District Court Denies Certification for Claims of Unpaid Meal Breaks

It has become almost part of the plaintiff playbook to bring wage and hour claims despite lawful employer policies by claiming some sort of “class-wide” policy of deviating from those policies. Sadly, this tactic works at...more

Supreme Court Limits Review Of Certification Denials

One of the difficulties of class action litigation that continues to vex employers is the frequent inability to obtain meaningful review of certification decisions. Because, the reasoning goes, certification orders are...more

Time Spent In Post-Shift Security Checks Once Again Held Not Compensable

If you have Amazon Prime, you get free delivery in two business days. If you want to pay extra (whether Amazon Prime or not), you can get your order the next day. So how long does it take for Amazon to get rid of a case the...more

Chipotle Wins One, Loses One, in Wage and Hour Class Litigation

We’ve commented on numerous occasions about the peculiar paths taken by wage and hour class litigation, particularly with respect to collective actions under the FLSA. Two cases involving the same employer decided only days...more

Court Refuses to Certify Class Due to Lack of Adequacy of Class Counsel

A recent case reflects that some courts will look not only to the presence or absence of conflicts or litigation misconduct but also to the plaintiffs’ counsel’s experience in other class action cases. In Goers v. L.A....more

Third Circuit Rejects Procedural Runarounds to Appeal Decertification of FLSA Collective Action

We’ve written many times in this blog about the two-step procedure used by many courts in Fair Labor Standards Act (FLSA) cases in collective actions. The first step is to provide notice to the proposed class and is typically...more

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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