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
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
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
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
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
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
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
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
Attorney fee awards are a major driver of class action litigation – both in the employment and other contexts. How they are awarded, and what is “reasonable” has been an ongoing source of contention in many cases. A recent...more
In the 1991 movie “Silence of the Lambs” and the book on which it was based, FBI trainee Clarice Starling is tasked with working with the now-infamous Hannibal Lector to find a serial killer. That movie won a Best Actress...more
Just before the pandemic triggered closings across the country, we identified an Illinois case as a good candidate for discussion. As the pandemic has eased, we’re taking the time now to address issues relating to the...more
Why, no, a plaintiff can’t eat his cake and have it, too - It is often the case that plaintiffs who cannot proceed as a class will settle their individual claims....more
It’s been awhile since we’ve addressed attempts at bringing class action disability claims (September 27, 2013 and March 6, 2014), but as we’ve noted in the past, they make poor candidates for class action treatment....more
We’ve commented in the past that off-the-clock cases can make poor candidates for class certification, particularly when the employer’s policies require that employees perform work only while clocked in. ...more
While class actions may prove lucrative for the plaintiffs who bring them, most cases just aren’t suitable for class action treatment and many would likely fare far better if the plaintiffs simply limited themselves to a...more
Ten years ago, the Ninth Circuit upheld the certification of a sprawling nationwide class action in Dukes v. Wal-Mart Stores, Inc., only to see that decision overturned a year later by the Supreme Court. ...more
We’ve noted many times that while employees prevail on most motions for conditional certification under the FLSA, employers tend to prevail on the second stage motion for decertification. ...more
What were they thinking, anyway?
Eighteen months ago, a group of African American financial advisors brought suit against JPMorgan Chase for alleged race discrimination and retaliation....more
In collective actions under the FLSA, courts typically apply a lower standard to the first “conditional certification” stage. ...more
An FLSA collective action involving exotic dancers is brought in 2008 and settles in 2011. Five years later, the same attorneys file essentially the same case with many of the same dancers as class members against some of the...more
Section 16(b) of the Fair Labor Standards Act (FLSA) is the provision that requires those participating in a federal claim for minimum wages or overtime to opt in to the class, making Rule 23 inapplicable. The same...more