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
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
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
Sexual harassment of prison staff by prison inmates is a difficult issue. Courts have rightly held that harassment by inmates can be actionable when the employer fails to take reasonable steps to combat it, but prisoners are...more
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
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
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
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
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
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
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
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
A claim is brought against a large employer contending that, although personnel decisions are made locally, it discriminates in pay and promotions on the basis of sex nationwide. Sound familiar? That was, essentially, the...more
It is fitting that the day after Halloween the Ninth Circuit issued its denial of rehearing en banc in Sali v. Corona Regional Medical Center, Case No. 15-56460, because the issue it raises, like Michael Myers in the...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
D.C. District Court Follows Dukes Admonition - Nearly seven years ago, in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the Supreme Court addressed, at least in significant respect, the question of whether experts must...more
Class not reasonably ascertainable -
In the wake of major wage and hour decisions such as last week’s opinion in Epic Systems Corp. v. Lewis, it’s easy to forget that employers continue to face class-action claims in other...more
Plaintiffs’ Arguments Miss the [fill in the blank] -
One of the justifications and requirements for class treatment is that the plaintiffs’ claims all can be resolved in one stroke. ...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
Identifying potential class members is not an issue in most employment cases, as the employer likely has any number of employment records for each of the claimants, including personnel files, electronic data, tax forms, time...more
The Northern District of Illinois has now either decertified or refused to certify two “off the clock” cases involving hourly workers at O’Hare Airport. Neither case involves O’Hare employees per se, but both involve large...more