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
1/10/2024
/ Arbitration ,
Chamber of Commerce ,
Employment Contract ,
Employment Litigation ,
Federal Arbitration Act ,
Mandatory Arbitration ,
Mandatory Arbitration Clauses ,
Preemption ,
State Labor Laws ,
Unenforceable Contract Terms ,
Viking River Cruises Inc v Moriana
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
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
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
7/12/2022
/ Abuse of Discretion ,
Americans with Disabilities Act (ADA) ,
Appeals ,
Brick-and-Mortar Stores ,
Class Action ,
Disability ,
Disability Discrimination ,
Employment Litigation ,
Federal Rules of Evidence ,
Public Accommodation ,
Remand ,
Retailers ,
Reversal
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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