I often preach that, when dealing with a class action, the employer should try to pick off the named plaintiff, perhaps overpaying to do so (or maybe not). In this interesting case, the parties settled (i.e. with the named plaintiff) right after the class had been decertified. The plaintiff had argued that he was misclassified
Class Actions
Yet Another Store Manager FLSA Lawsuit: The Hits Just Keep On Coming
When will employers learn? They keep classifying retail Store Managers and Assistant Managers as exempt, when these workers are often misclassified, not intentionally, but because the nature of their duties often tends to undermine the primary duty test and render them non-exempt. Another example is a recent case where Store Managers have been granted conditional…
Third Circuit Rules on Two Class Actions in Same Decision and Opines on Doctrine of Pendant Jurisdiction
In a very interesting and off-beat decision, the Third Circuit has thrown out one class of loan officers who alleged misclassification but let stand the lower court’s decision that certified the case as a collective action under the Fair Labor Standards Act. The case is entitled Reinig et al. v. RBS Citizens NA, and…
One Toke Over the Line: Employer of Marijuana Workers Seeking FLSA Overtime Defends By Asserting Its Business Is Illegal
It is not often when an employer defends a FLSA lawsuit by asserting that it is in an illegal business and therefore immune to suit. Sound funny? Well, that is precisely what a Colorado employer that furnishes security services to legal cannabis growers/sellers has pressed on the Tenth Circuit. The employer’s theory is that the…
Judge Allows Named Plaintiff Expansive Ability To Communicate with Potential Opt-Ins in FLSA Collective Action
When a class action is filed, often times there are issues (for the plaintiff and their counsel) as to who should be in the class. Often, the named plaintiff will seek to reach out to other putative class members, but it is not every day when a Judge orders that the plaintiff may telephone or…
Decertification of a Class and Rejection of Another Class in the Same Case: The Daily Double!
This is an interesting case because it combines the elements of necessary, but not proven, commonality of situation for class certification and a quirky element of overtime calculation based on a unique FLSA provision. The bottom line is that the two workers who sought a class action on both the federal and state levels lost…
Second Circuit’s Review of Position Description Determines Outcome in FLSA Outside Sales Class Action
This is an interesting case. A class action that was denied certification, appealed to the Second Circuit, which reversed because the lower court did not properly interpret the job description on the key issue of duties qualifying for the employer to claim the protection of the Part 541 exemptions. The employees were salesmen and installation…
Preemption Defense in FLSA Class Actions: Magic Bullet? Maybe/Maybe Not
When hit with a wage hour suit, class action or single, employers are well advised to look for a preemption argument, whether from a union contract (e.g. National Labor Relations Act) or a statutory construct. If the preemption argument is successful, the entire suit goes away. Therefore, such an argument can become the proverbial “magic…
FLSA Proposed Class Cut By Judge Who Found Dissimilarities Among Workers
Often, when a class of workers petitions for conditional certification in FLSA collective action, and such certification is granted, it usually is for the entire class being asked for. Sometimes it is not and when that happens, it is “news.” That has happened in a recent Pennsylvania case where the proposed class was more than…
CBS Parking Spot Case Settles: Another Example Of A FLSA Working Time Issue Gone Viral
I had blogged about this case when it first came out. It struck me as very interesting because not only is the subject matter unique, it also raises the whole thorny issue of what is (or is not) working time. This latest case involves Parking Production Assistants (PPAs). These people worked for CBS and their…