In collective actions under the FLSA, courts typically apply a lower standard to the first “conditional certification” stage. ...more
We’ve commented many times before that relatively few collective actions survive the “second stage” motion to decertify or, relatedly, an unofficial “third stage” when the trial court actually considers how the matter will be...more
Two years ago, we blogged a pair of cases with similar fact patterns and outcomes involving the successful use of time studies (See our October 13, 2017 and October 16, 2017 blog posts). ...more
Connecting the dots will likely be a problem down the road . . .
The overwhelming majority of employment class or collective actions today are wage and hour matters....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
We’ve noted before that while conditional certification motions are often granted, such classes fare far less well at the second decertification stage and just as poorly on the eve of trial....more
More games of cat and mouse -
Following the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1632 (2018), plaintiffs have tried to come up with strategies to address the impact of arbitration agreements...more
In yet another challenge regarding the employment status of students and interns as employees, the Second Circuit has concluded quite rightfully that vocational students – even those at for-profit institutions – are still...more
Ruling also touches upon FLSA conditional certification order -
Many wage and hour cases filed today try to name popular targets and to rely upon tried and true allegations....more
FLSA Conditional Certification Denied Too - The position of mortgage loan officer has been a fertile source of wage and hour claims, but a recent case from the Central District of California reflects that certification of a...more
Once thought to be the next wave of wage-and-hour cases, suits involving interns and students have tended to founder because most training programs are intended to train rather than to provide employment....more
No, that isn’t a typo – it was the Ninth Circuit.
Those familiar with collective action litigation are already familiar with the two-step paradigm most courts use to evaluate collective action claims. In the first stage,...more
Unreported opinion will also impact potential counterstrategy -
Just three months ago, the Supreme Court rendered its decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1632 (2018), in which it rejected perhaps the...more
No shocking outcome here. In Gaffers v. Kelly Services, Inc., Case No. 16-2210 (6th Cir. Aug. 15, 2016), the Sixth Circuit held that the Supreme Court’s decision in Epic Systems v. Lewis, 138 S. Ct. 1632 (2018) applies to...more
It’s fairly uncommon to see discovery issues make their way to courts of appeal, particularly in class action or wage and hour cases. Last week, however, the Eighth Circuit issued a decision regarding the scope of discovery...more
Fast food enterprises are frequent targets for claimed wage and hour violations. Because in many instances the places where the plaintiff worked is actually a franchise, the scope of a claim or proposed class may be limited...more
The United States District Court has rendered a decision that is interesting in at least two respects. First, it is a lengthy and thoughtful opinion denying certification of a putative class of 1,100 café managers under the...more
Ernest Angley is an evangelist and purported faith healer who operates a large church in Akron known as Grace Cathedral. It would be difficult to parody him, as his appearance, mannerisms and method of faith healing are...more
In virtually every case, so-called off-the-clock disputes come down to the situations of individuals rather than classwide conduct. An employee may claim that a night supervisor told them not to record time after midnight. An...more
In 2014, five law firms brought a claim for alleged off-the-clock work. As discovery revealed, the claims all arose out of conduct involving a single shift supervisor at a single restaurant, and the conduct was disputed at...more
Four years ago, a wave of cases involving unpaid internships looked to be the next “big thing.” As those cases sputtered, however, and employers reduced or eliminated internships, the flood of anticipated litigation never...more
With scores of collective actions being filed every month and many courts willing to issue conditional certification on even very weak claims, it’s easy to forget that, yes, it’s important for there to be a claim in the first...more
With waves of cases already having addressed common targets for wage and hour litigation – assistant managers, healthcare workers, loan officers, donning and doffing claims, and the like – cases alleging more arcane claimed...more
As we’ve noted before, many courts have applied the standard for conditional certification so leniently that in places the requirement of a group of “similarly situated” employees under the FLSA has all but disappeared. So,...more
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