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
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
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
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
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
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
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
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
On March 18, 2020, Congress passed, and President Trump signed, the Families First Coronavirus Response Act (“FFCRA”). The Act took effect April 1, 2020, and it sunsets on December 31, 2020. This set of FAQs is intended to...more
Misclassification cases are grist for the mill in wage and hour litigation. As we have pointed out previously, the typical pattern is for the plaintiff to assert claims for unpaid overtime on the grounds that the position...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
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
A recent case from the Third Circuit casts a spotlight on many of the problems inherent in so-called off-the-clock claims for overtime....more
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
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
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
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
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
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
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
Expert’s Report Didn’t Adequately Explain Causation -
While antitrust cases are often good candidates for class action treatment, it is still important for the plaintiffs to demonstrate a connection between the alleged...more