This seems to be the month for class action cases presenting unusual issues in combination. Last week we wrote about a class action disparate impact claim of disability discrimination against the obese in which the court...more
Class action lawsuits alleging disability discrimination are uncommon, and those involving disparate impact claims are less common still. This is due, in part, to the fact that unlike other types of discrimination claims, a...more
What is the right compensation for a particular job? That’s the question virtually every employer must face. Pay too little, and the employer may not be able to fill a position or must settle for less than the best...more
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
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
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
Many employers, including the EEOC, use criminal background checks as part of their hiring processes....more
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
Employers originally began using standardized tests to try to find a more objective and hopefully accurate way to select the best candidates for promotion and hire....more
Differences among putative class members are frequently the heart of the employer’s defense to a class action lawsuit. Such differences implicate the elements of commonality and typicality and possibly even adequacy of...more
When is a “service charge” a tip? And who gets it, the employer or the employee? These aren’t just questions of etiquette, but are now serious issues for the restaurant and tourism sector in Hawaii....more
I had a smart aleck friend who tried to come up with the Starbucks coffee order that had the greatest number of syllables. I can’t remember the winning combination, but it definitely had the words “half-caf” and “cinnamon”,...more
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 ,
Fair Labor Standards Act (FLSA) ,
NLRB ,
SCOTUS ,
Wage and Hour
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
“If at first you don’t succeed, try, try, again,” or so the adage goes. A recent case suggests that may not always be the right strategy or, more apropos to this blog, that off-the-clock cases make poor fodder for class...more
On May 30, 2013, the Sixth Circuit issued its decision in Davis v. Cintas Corporation, Case No. 10-1662 (6th Cir. May 30, 2013), in which it upheld a district court’s refusal to certify a disparate impact Title VII case, but...more
6/1/2013
/ Class Action ,
Commonality ,
Discrimination ,
Disparate Impact ,
Dukes v Wal-Mart ,
Equal Employment Opportunity Commission (EEOC) ,
FRCP 23(b)(2) ,
Hiring & Firing ,
Predominance Requirement ,
Sex Discrimination ,
Summary Judgment ,
Title VII
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
Just two years ago, a California case declining certification of an action would have been cause for comment. But since then, in 2011 the United States Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541...more
Student internships can provide worthwhile benefits to the students involved, who gain experience, contacts, and accomplishments to place on their resumes. Employers, too, can benefit from the work and insight of the intern,...more
5/13/2013
In the vast majority of discrimination cases, there is little dispute over whether the plaintiff is actually in a protected group. For example, in sex discrimination cases, for the most part, they are either male or female;...more
Last week, the United States Supreme Court confirmed what we informed readers of in our Employment Class Action Blog on February 21, 2011, "A timely and properly worded offer of judgment may moot a collective action and...more
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
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
It is axiomatic that the class action vehicle exists for the benefit of the claimants. An inherent conflict of interest may arise between the class and plaintiffs’ counsel over the issue of attorney fees, and resolution of...more
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