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10th Circuit Reverses Class Certification in Claimed Off-the-Clock Case

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

Supreme Court Adopts Strict Construction of Salaried Test, Even for Highly Paid Exempt Employees

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

Supreme Court Holds Prejudice Not Required for Waiver of Right to Arbitrate - But Does Little Else

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

Third Circuit Rejects District Court’s Trial-Before-Certification Plan

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

Spending Bill Would Place Class Action Waivers in Jeopardy

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

Sixth Circuit Limits Scope of Putative Nationwide FLSA Collective Actions on Personal Jurisdiction Grounds

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

District Court Rejects Conditional Certification of FLSA Claims Inserted into Data Breach Class

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

Ninth Circuit Holds That District Court Must Weigh Evidence to Determine Rule 23(b) Predominance

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

Florida Court Denies Conditional Certification in Tip Credit Case

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

Seventh Circuit Finds Class of 37 Does Not Meet Rule 23’s Numerosity Requirement

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

The Fifth Circuit Rejects Two-Stage Conditional Certification Procedure for FLSA Collective Actions in Favor of a One-Step...

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

Eleventh Circuit Upholds Small Fee Award in FLSA Case

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

Missouri District Court Rules on Employment Class Action Procedural Quagmire

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

Florida District Court Denies Conditional Certification in ‘Tip Credit’ Case

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

Ninth Circuit Finds No Right of Contribution or Indemnity Under the FLSA

Joint or single employer liability has gotten a lot of attention in recent years, where a company is held responsible for the employment obligations of a sufficiently interrelated contractor or corporate entity. ...more

Sixth Circuit Addresses RICO and FLSA Claims

Successful FLSA plaintiffs will likely receive not only the claimed unpaid overtime or minimum wage, but also liquidated (double damages) and payment of their attorney fees. But what if they want . . . more? Will a RICO claim...more

Illinois District Court Decertifies FLSA Collective With 1,600 Opt-Ins

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

Court Vacates Jury Award Due to Problems With Plaintiffs’ Expert Reports

Few collective actions are tried, and even when they are, unexpected problems can easily arise. Those problems in a recent case led to the court vacating a jury verdict for the plaintiffs due to what might be characterized as...more

Second Circuit Upholds Fluctuating Work Week Despite Potential Payroll Issues

More than 75 years ago, just four years after the passage of the Fair Labor Standards Act (FLSA), the United States Supreme Court recognized what has now become known as the fluctuating work week (or “FWW”) as an alternative...more

Arkansas District Court Reduces Attorney Fees in FLSA Collective Action to $1

It’s hard not to express cynicism when discussing attorney fee awards in overtime class and collective actions. Courts have adopted wildly different tests and benchmarks, and different jurisdictions apply very different...more

Ninth Circuit Finds That Settlement of Individual Claims Moots Class Allegations

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

Second Circuit Finds That Nurses Are Professionals, Even if They Work for Insurance Carriers

Not quite two years ago, the Supreme Court decided the case of Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134 (2018), a case we blogged. The case itself involved the issue of whether service consultants at auto dealers...more

Second Circuit Finds That Rule 68 Be Used To Settle FLSA Claims

Many litigants in FLSA cases find practical obstacles in settling the matters, particularly when there are disputes regarding what exactly has happened or when the underlying claim turns out to be very small....more

Louisiana District Court Decertifies FLSA Class of Warehouse Supervisors

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

Third Circuit Affirms $4.5 Million Verdict in Favor of Exotic Dancers

A significant amount of wage and hour class/collective jurisprudence has developed around the issue of whether exotic dancers are employees or independent contractors....more

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