I have done a lot of independent contractor work in New Jersey, defended many such cases, from (numerous) unemployment audits to FLSA class actions. The New Jersey test, the A-B-C test, is well-established and one of the hardest for the putative employer to prevail upon. The test was, just a few years ago, reinforced by
Misclassification
Eleventh Circuit Decision On Opt-In Consent Changes FLSA Collective Action Landscape
By Mark Tabakman on
Posted in Class Actions, Independent Contractor
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
By Mark Tabakman on
Posted in Class Actions, Exemptions
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…
Harvard University Gets Lesson in “Higher Education” in Independent Contractor Case
By Mark Tabakman on
Posted in Class Actions, Independent Contractor
Classification issues are annoying ones, to state the obvious. Especially decisions and issues as to who is and who is not an independent contractor. And, it does not matter whether the defending entity is a mom-and-pop candy store or one of our most elite educational institutions, such as Harvard University. That august institution has just…
New Intern Test Announced By USDOL: Definitive Guidance?
By Mark Tabakman on
I have blogged many times about the rash of intern cases that have popped up over the last few years. Now maybe there will be a consistent, uniform test for determining whether interns are really statutory “employees.” The US Department of Labor has endorsed such a test. The agency is approving the so-called “primary beneficiary”…
More Law Firms Hit With FLSA Misclassification Claims: A Cautionary Tale
By Mark Tabakman on
Posted in Class Actions, Exemptions
I have written a number of times about law firms that have been sued in FLSA actions. Another example. Employees have sued two Florida personal injury law firms, alleging that they were misclassified and not properly paid proper overtime wages in violation of the Fair Labor Standards Act. In fact, there are two class actions…
Urban Outfitters Decertifies FLSA Class: Too Many Individual Differences (Again)
By Mark Tabakman on
I have blogged (somewhat incessantly, I admit) about manager FLSA class actions and what the line(s) of defense are for the employer in these cases, and how to defeat these cases. Another case in point. A federal judge has now decertified a collective class, following the Magistrate Judge’s recommendation against the class continuing…
Oil Energy FLSA Exemption Collective Action Settles: The Right Move By The Employer
By Mark Tabakman on
No industry is immune to FLSA collective actions and the energy industry is seeing a significant uptick in these actions. In this regard, a class of workers employed by an oil field services company has just agreed to a $2.1 million deal to settle a Fair Labor Standards Act collective action alleging that the company…
Need for Individual Scrutiny Kills FLSA Collective Action – That’s the Cure for This Disease
By Mark Tabakman on
I have blogged on this topic many times but I never tire of it. What is the way to defeat a class action? The magic bullet? The answer? Too much individual scrutiny is needed! Another Judge has proven me right on this. A federal judge has denied a motion to certify a class of…
Another FLSA Class Action Alleging Misclassification Settles: What Else Is New?
By Mark Tabakman on
Posted in Class Actions, Exemptions
It is difficult to defend a class action based on exemption, which explains why many of these cases (as herein) settle. This is because the employer-defendant is (usually) going to be completely right, or totally wrong. Either the class of workers (especially if the exemption at issue is professional or administrative) will meet the regulatory…