Class Counsel Blog

Showing 10 posts in Wages.

DOL Proposes New Requirement That Workers Earn At Least $50,440 Per Year To Qualify For White Collar Exemptions

On June 30, 2015, the U.S. Department of Labor (“DOL”) released its long awaited proposed rule changes to the “white collar” overtime regulations under the Fair Labor Standards Act (“FLSA”).  Although the DOL previously indicated they would simplify the FLSA’s often difficult to administer “duties test,” the DOL so far has left that test untouched.  Instead, the DOL proposes to raise the salary level from which an employee can qualify for a “white collar” exemption from overtime pay requirements from $23,660 per year to approximately $50,440 per year.  The DOL predicts this will cause employers to change the exempt status of nearly 5 million workers who are currently exempt from overtime requirements to non-exempt status – requiring the payment of overtime.  The proposed rule still needs to undergo a public comment period before it can be implemented as a final rule.  Read More ›

Plaintiffs beware: Courts may tax costs upon non-prevailing plaintiffs in FLSA collective actions

In Fair Labor Standards Act (“FLSA”) collective actions it is not uncommon for plaintiffs to file motions for conditional certification of an opt-in class early in the litigation, many times with the Complaint.  Courts frequently grant such motions and order class notice to issue before discovery has taken place.  Defendants usually seek to include language in the notice that informs potential opt-in plaintiffs that if they lose they may be liable for the defendant’s costs (not including attorney’s fees).  The Western District of Pennsylvania gave defendants some additional ammunition in negotiating these notices, by awarding the prevailing defendants over $60,000 in costs.  Read More ›

Court Rules Ohio Constitution’s Minimum Wage Provision Creates Vehicle for Rule 23 Class-Action Lawsuits, Opt-In Not Required

In Brenneman v. Cincinnati Bengals, Inc., No. 1:14-CV-136, 2014 WL 5448864 (S.D. Ohio Oct. 24, 2014), the Plaintiff, a former Cincinnati Bengals cheerleader, filed a class and collective action alleging the Bengals paid her less than the minimum wage. She asserted claims under the Fair Labor Standards Act (“FLSA”), Article II § 34a of the Ohio Constitution known as the Ohio Fair Minimum Wage Amendment, and the Ohio Minimum Fair Wage Standards Act, Ohio Rev. Code 4111.14. Plaintiff filed her Ohio law claims as a class action under Federal Rule 23.  The Bengals moved to dismiss the Constitutional claim, arguing that the Plaintiff could not proceed directly under the Constitution but had to proceed under the implementing legislation, R.C. 4111.14. The Bengals also moved to dismiss the Rule 23 class claims because the implementing provision of the Minimum Wage Amendment provided for only opt-in collective actions for minimum wage violations.  The Court denied the Bengals’ motion to dismiss, effectively concluding that Ohio law permits employees alleging minimum wage violations to proceed with an opt-in collective action under the statute or an opt-out class action under the Constitution. Read More ›

When are McDonald’s Uniformed Shift Workers Similarly Situated? Court Denies Motion for Conditional Certification in FLSA Litigation

In Pullen v. McDonald's Corp., Nos. 14-11081, 14-11082, 2014 WL 4610296 (E.D. Mich. Sept. 15, 2014), two groups of plaintiffs filed collective action lawsuits under the Fair Labor Standards Act (“FSLA”) against different owners and operators of McDonald’s restaurants. The Court denied motions for certification. Read More ›

Ninth Circuit Ruling On Independent Contractors Could Have Damaging Consequences for Businesses

The Ninth Circuit Court of Appeals recently held that a class of FedEx delivery drivers were employees, not independent contractors.  The ruling, if upheld, could have significant consequences for the logistics company.  Indeed, Circuit Judge Stephen Trott claimed in his concurrence that the decision “substantially unravels FedEx’s business model.” Read More ›

National Labor Relations Board Continues to Reject Class Waivers Despite Contrary Circuit Court Decisions

This Tuesday, a National Labor Relations Board administrative law judge held that UnitedHealth Group Inc. could not enforce an arbitration agreement to prevent employees from litigating a class action in federal district court that arose out of UnitedHealth’s alleged violations of the Fair Labor Standards Act (“FLSA”). Read More ›

New York state trial court rejects federal Wal-mart and Behrend standards for class certification; awards partial summary judgment to wage & hour plaintiffs

Cardona v. Maramont Corp. (NY/Supr. Ct. New York County 6/6/2014) entered partial summary judgment for a class of employee-plaintiffs based upon the employer’s failure to keep records of the time that employees spent working under publicly-financed food service contracts. In so doing, the Court considered and rejected application of “rigorous analysis” standards for evaluating class certification. Read More ›

Northern District of West Virginia denies certification to improper "fail-safe" class in wage lawsuit against Dollar General Corporation.

The Northern District of West Virginia recently issued a decision rejecting a plaintiff’s request for class certification on the grounds that it was a “fail-safe” class.  This marks the first reported decision from West Virginia in which the court denied certification on the grounds that a putative class was a fail-safe one.  It also serves as yet another reminder to would-be plaintiffs that courts will not indulge these creative attempts to transform what is an individual dispute into a class action by conditioning class membership on the merits of each potential member’s claim. Read More ›

The Employment Class and Collective Action Landscape After Wal-Mart v. Dukes

The Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), has been hailed as one of the most significant class action decisions in years.  The case significantly strengthened the requirements for lawsuits to proceed as class actions under Federal Rule of Civil Procedure 23.  Almost three years after the Supreme Court issued its opinion, courts and litigators are still grappling with the implications of the case, particularly in employment class and collective actions.  Nevertheless, some clear patterns have emerged in the lower courts. When interpreting the commonality requirement in Rule 23 class actions, lower courts have paid particular attention to the size of the class and the degree the action involves common or companywide policies with limited individual discretion, whether the allegedly discriminatory policy is determined by many lower level managers or uniformly enacted by upper level executives.  Additionally, courts have often found Dukes inapplicable in Fair Labor Standards Act (“FLSA”) collective actions, but have applied Dukes to hybrid class and collective actions. Read More ›

Sixth Circuit Dismisses Misclassification Class Action in Favor of Arbitration

The Sixth Circuit Court of Appeals recently issued a published decision in favor of arbitration that has potentially broad impact on employment and arbitration agreements.  For the first time, the court held that the strong federal policy in favor of arbitration requires an arbitration agreement to be enforced after the agreement expires, even if the arbitration clause is not listed in the agreement’s survival clause.  Huffman, et al. v. The Hilltop Companies, Case No. 13-3938 (6th Cir. Mar. 27, 2014). Read More ›

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Attorney Spotlight

Stephen E. Embry is a member of the Firm's class action, privacy and mass tort groups. He frequently defends participants in consumer class actions and mass tort litigation. Stephen is a national litigator and advisor who is experienced in developing solutions to complex litigation and corporate problems.