There are times when one would rather not be proven right. Nearly four years ago, a California district court invalidated AB 51, which sought to prohibit mandatory arbitration by, among other things, calling for criminal...more
1/10/2024
/ Arbitration ,
Chamber of Commerce ,
Employment Contract ,
Employment Litigation ,
Federal Arbitration Act ,
Mandatory Arbitration ,
Mandatory Arbitration Clauses ,
Preemption ,
State Labor Laws ,
Unenforceable Contract Terms ,
Viking River Cruises Inc v Moriana
Court also holds that arbitrability questions must be resolved by the arbitrator -
The 10th Circuit has decided two significant issues in an otherwise garden-variety off-the-clock case, one relating to arbitration and the...more
11/7/2023
/ Appeals ,
Arbitration ,
Arbitration Agreements ,
Class Action ,
Class Certification ,
Corporate Counsel ,
Employment Litigation ,
Fair Labor Standards Act (FLSA) ,
FRCP 23 ,
Reversal ,
Unpaid Overtime
While several recent Supreme Court decisions have garnered significant headlines, the Court’s late June ruling in Coinbase, Inc. v. Bielski, (Case No. 22-15), likely flew under the radar for the national media outlets. For...more
One relatively common misapprehension by employers is that generous wages or popular methods of payment will satisfy the Fair Labor Standards Act (FLSA). On February 22, 2023, the Supreme Court reiterated the need not simply...more
2/22/2023
/ Employer Liability Issues ,
Employment Litigation ,
Exempt-Employees ,
Fair Labor Standards Act (FLSA) ,
Helix Energy Solutions Group Inc v Hewitt No 21-984 ,
Highly Compensated Employees ,
Minimum Salary ,
Multi-Factor Test ,
Over-Time ,
Salaried Employees ,
SCOTUS ,
Wage and Hour
Most employers today have anti-harassment policies covering race, gender and other types of discrimination to help comply with state and federal antidiscrimination legislation and to take advantage of the affirmative defense...more
Class action disability discrimination cases can be particularly difficult. While there is little question of whether a particular individual is in a protected group in a typical case involving race, gender or age, the...more
7/12/2022
/ Abuse of Discretion ,
Americans with Disabilities Act (ADA) ,
Appeals ,
Brick-and-Mortar Stores ,
Class Action ,
Disability ,
Disability Discrimination ,
Employment Litigation ,
Federal Rules of Evidence ,
Public Accommodation ,
Remand ,
Retailers ,
Reversal
In a much-anticipated opinion, the Supreme Court unanimously held that a party claiming waiver of the right to arbitrate need not show prejudice, in Morgan v. Sundance, Inc., Case No. 21-328 (May 23, 2022). While the holding...more
Years ago, employers argued unsuccessfully that plaintiffs should not be able to pursue so-called hybrid claims pursuing both Rule 23 opt-out classes and Fair Labor Standards Act (FLSA) opt-in collective claims at the same...more
For many years, state and federal courts in California have opposed arbitration and have manufactured frameworks under which they become unenforceable despite the clear directives of the Federal Arbitration Act (FAA) and...more
Only three years ago, the Supreme Court reversed the holdings of a large number of lower courts and held that class action waivers in arbitration agreements were enforceable. Epic Systems Corp. v. Lewis, 138 S. Ct. 1612...more
The United States District Court for the Western District of Wisconsin has refused to grant certification in a two-year-old dispute over uniforms for airline personnel. In Gilbert v. Lands’ End, Inc., Case No. 19-cv-823-jdp...more
Four years ago, in Bristol-Myers Squibb v. Superior Court, 137 S. Ct. 1773 (2017), the United States Supreme Court addressed an effort by plaintiffs to bring 600 product liability claims, mostly by non-Californians, in the...more
Here’s a novel approach: What if you have an “off the clock” case where the court disfavors certification? Can you simply tack them onto claims in another pending class action lawsuit?...more
Following the United States Supreme Court’s decision three years ago in Epic Systems Corp. v. Lewis, courts have increasingly enforced arbitration agreements with class action waivers. We blogged about the Epic Systems...more
While statistical evidence has long been held to be probative on the issue of potential discrimination, it can also be tricky. Questions often abound regarding the collection of data used for statistical comparisons, the...more
Sexual harassment of prison staff by prison inmates is a difficult issue. Courts have rightly held that harassment by inmates can be actionable when the employer fails to take reasonable steps to combat it, but prisoners are...more
Court also rejects ‘fail-safe class’ allegations - The restaurant industry has been among the hardest hit during the current pandemic, but that has not prevented plaintiffs from pursuing class and collective action claims...more
As numbers go, 37 isn’t as famous as, say, 1 or 13. It’s a prime number, the atomic number of rubidium and the age of the peasant Dennis in the movie Monty Python and the Holy Grail, but not much else. Now, however, it may...more
On Jan. 12, 2021, the Fifth Circuit Court of Appeals significantly altered the process for certification of collective actions in wage and hour cases under the Fair Labor Standards Act (“FLSA”). In Swales v. KLLM Transport...more
When is a win not a win? One ace in the hand of plaintiffs’ counsel in Fair Labor Standards Act (FLSA) litigation (as well as claims under Title VII, the Americans with Disabilities Act or the Age Discrimination in Employment...more
In some instances, it’s hard to see what benefit there is to a class action other than for the lawyers. This is particularly true in so-called “regular rate” cases challenging employer perks such as free meals, various kinds...more
Yes, you read that right. Class action litigation is fueled largely by the availability of often large attorney fee awards. ...more
Introduction - The Families First Coronavirus Response Act (FFCRA) was enacted just under six months ago in the wake of closings prompted by the then new coronavirus pandemic. As most employers know, the FFCRA created leave...more
Res judicata helps cut the Gordian knot - Rule 23 and FLSA Section 16(b) can provide myriad benefits to the plaintiffs in class actions, but in some instances the attorneys may resort to procedural runarounds to try to...more
Tip credit issues are inherently difficult. Section 3(m) of the Fair Labor Standards Act permits an employer to count tips toward a portion of a tipped employee’s wages to meet the minimum wage (and in some instances...more