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
LMRA Preemption Defense Works Yet Again: Defense Counsel Should Always Look for It!
Employers should always look for a preemption defense when a FLSA suit is lodged against a unionized client. Clear proof of that was just given by the Ninth Circuit when that Court held that unionized offshore oil rig workers could not pursue overtime claims because the Labor Management Relations Act (LMRA) barred the suit.
Off-The-Clock Collective Action Case Settles: The Continuing Danger for Employers
I have defended many off-the-clock working time cases and I submit that they are very dangerous for employers. This is because they are particularly amenable to class certification because it is likely that there is a common policy applicable to the members of the class. This premise is highlighted by a recent settlement for a
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
Converting Exempts To Non-Exempts Leave A Window Of Opportunity
When an employer realizes that a certain classification or number of employees has been misclassified as exempt, the employer may do the right thing and, henceforth, treat those people as non-exempt and pay overtime accordingly. That corrective measure, however, leaves a gap because the workers can sue for overtime for the period preceding the change.
Interagency Coordination Between NJDOL And USDOL: Like Petula Clark Sang, Is This A “Sign Of The Times?”
The issue of who is and who is not an independent contractor has exploded on the legal scene in recent years. Many agencies are honing in on this topic and I have, over the last five years, probably defended more than fifty audits, inspections and lawsuits involving this issue. Well, the landscape just got murkier,
Sales Representatives Get Certification On Failure To Include Commissions In Overtime Class Action: A Cautionary Tale
It is vital for employers to remember that when non-exempt employees earn commissions, those commissions must be included in the computation of their regular rate when they work overtime. The inclusion of the commissions bumps up the regular rate a little but if this is not done, then these small amounts of money can quickly
Another USDOL Car Wash Lawsuit Highlights The Issues In That Industry
The car wash industry is one that is subject to many alleged wage-hour issues (some might say abuses). A recent case illustrates this maxim. A car wash has just settled a lawsuit with the USDOL for $4.2 million on wage hour claims. The theory was that the employer avoided paying proper minimum wage and overtime