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At Long Last, California District Court Permanently Enjoins Enforcement of AB 51

There are times when one would rather not be proven right. Nearly four years ago, a California district court invalidated AB 51, which sought to prohibit mandatory arbitration by, among other things, calling for criminal...more

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

Third Circuit Reverses Certification of ADA Accommodations Class Based on Retail Store Access

Class action disability discrimination cases can be particularly difficult. While there is little question of whether a particular individual is in a protected group in a typical case involving race, gender or age, the...more

California District Court Denies Certification of Off-the-Clock Case

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

Ninth Circuit (Barely) Acknowledges the Dukes Case in Discrimination Class Action Litigation

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

Third Circuit Finds Multiple Problems With Certification of Off-the-Clock Claims

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

Eighth Circuit Affirms $4.6 Million Fee Award Against the EEOC

How Many Decades of Litigation is Enough? On retreating from Russia after the disastrous 1812 invasion, Napoleon famously commented, “It is but a step from the sublime to the ridiculous.”...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

District Court Decertifies FLSA Collective Action With Independent Contractor Issues

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

Tennessee District Court Conditionally Certifies ADEA Collective Action

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

Sixth Circuit Affirms Complex Settlement of FLSA Claims Involving Exotic Dancers

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

Illinois District Court Decertifies Equal Pay Act Collective Class Involving Physicians

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

California Off-the-Clock Case Involving Independent Contractors Crumbles

Extensive expert report still fails to establish fairness and manageability for trial. A growing number of courts are questioning classwide proof in off-the-clock cases, and those examining expert testimony in such matters...more

Ninth Circuit Affirms Decertification of FLSA Off-the-Clock Case

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

California Meal Period Claim Done In by Collective Bargaining Agreement

While the proportion of private sector employees represented by unions is down, unions retain an important workplace role, and the terms of collective bargaining agreements can both affect and be fatal to wage and hour...more

Washington Court Denies Plaintiffs’ Motion for Summary Judgment on Various Overtime Issues

Overconfidence won’t overcome questions of fact - Most practitioners and human resource professionals are already familiar with the increasingly difficult wage and hour laws in California and its “Mini Me” to the east, New...more

Off-the-Clock Cases Stumble

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

Courts Deny Certification for Adequacy of Representation in Second Class Action

One of the tactics in the current plaintiffs’ wage and hour playbook is to bring a second claim after settlement of an initial class or collective action lawsuit. In these cases, the second set of claims is purportedly...more

Minnesota Court Cuts Proposed Attorney Fee Award From $3.2 Million to $600,000 in Off-the-Clock Case

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

California Court Denies Conditional Certification of “Regular Rate” Overtime Case

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

Another Off-the-Clock Case Felled by Time Study

Last week, we discussed the decision of the Northern District of California in Rodriguez v. Nike Retail Services, Inc., Case No. 14-cv-01508-BLF (N.D. Cal. Sept. 12, 2017), in which the employer’s use of a time study resulted...more

Illinois Appellate Court Reverses Certification in Off-the-Clock Case

With many of the most common sources of overtime claims being exhausted (e.g., assistant manager cases), plaintiffs are bringing off-the-clock cases in increasing numbers. While employers should certainly pay nonexempt...more

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