The whole trick for a plaintiff (and his lawyers) in a FLSA collective action case is to try to get conditional certification. Once that happens, the stakes automatically escalate for the defendant-employer, often leaving settlement as the most viable and cheapest manner of resolving the case. This process becomes more complicated when there is, as
Employee Status Will Not Be Determined by Judge in Conditional Certification Stage in FLSA Collective Action
There is no industry that is immune to wage hour or FLSA actions, including amateur sports leagues. In an interesting case, a federal Judge has granted conditional class certification to a class of members of an amateur football league who worked as referees and who were, they claim, compelled to perform the work of refereeing
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
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
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
Happy Birthday FLSA: Eighty And (Maybe Not) Still Going Strong!
The Fair Labor Standards Act is eighty years old this month and commentators strongly suggest that the law needs updating in many areas.
My colleague Tammy McCutchen stated that a complaint-driven mechanism defense should be engrafted into the FLSA. She stated that “I think employers should get the opportunity to avoid [some liability] by having
Yet Another Assistant Manager Collective Action: Will They Never End?
I have often written about the scourge of Assistant Manager class actions. The employee category is particularly subject to this kind of lawsuit as these workers often perform some non-exempt work and it is unclear many times if they possess and exercise sufficient and proper supervisory authority. A recent case in New Jersey provides
Eleventh Circuit Decision On Opt-In Consent Changes FLSA Collective Action Landscape
Employers are always trying to cut off the head of a class action, i.e. the named plaintiff, in order to bring the case to an end. What happens when the named plaintiff is gone from the case but some people have opted in? Do they become named plaintiffs, with the case continuing? The Eleventh Circuit
Computer Exemption Case Settles: Discretion Is The Better Part of Valor
Exemption class actions, i.e. lawsuits alleging misclassification, continue to pop up in different contexts and concerning different classifications. A bank has just agreed to settle a case by paying more than $2 million to put a close to a Fair Labor Standards Act (FLSA) collective action based on a theory that the bank misclassified certain