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Category Archives: Employment

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Supreme Court to Decide Whether Fair Labor Standards Act Requires Compensating Employees for End-of-Shift Security Screenings

Posted in Employment, U.S. Supreme Court

The Supreme Court makes its biggest headlines when it wades into the biggest issues of the day. But the Supreme Court also maintains a substantial docket of seemingly small—but ultimately important—technical questions. In recent years, the Court has been particularly interested in defining precisely when an hourly employee is on and off the clock. For… Continue Reading

Do Employers Have To Pay Unionized Workers For Time Spent Donning and Doffing Safety Gear? Supreme Court Says No.

Posted in Employment, U.S. Supreme Court

In recent years, one of the hottest types of collective actions against employers under the Fair Labor Standards Act (“FLSA”) is what is commonly called a “donning and doffing claim”—a lawsuit for unpaid wages for time employees spent changing clothes for work, such as putting on uniforms, safety gear, and the like. In a recent… Continue Reading

Recent Appellate Decisions Underscore That Wage and Hour Class Actions are Alive and Well in California Despite Brinker

Posted in Class Certification, Employment

Some observers of California wage-and-hour class actions contended that the Brinker v. Superior Court—a key decision we have discussed in the past—had sounded the death knell for class certification in those cases. of California wage and hour class actions. Not so fast, according to the California Courts of Appeal, which have, in four published opinions,… Continue Reading

The Fate of Hollywood Internship Programs May Rest With the Second Circuit

Posted in Employment, Predominance

Former interns used to get revenge against their employers by writing tell-all blog posts and memoirs. Now, they’re lending their names to plaintiffs’ lawyers, who then file wage-and-hour class or collective actions alleging that interns must be paid like hourly employees. The unpaid internship is among the hottest areas in wage-and-hour litigation. Two of the… Continue Reading

Supreme Court Grants Review in Recess Appointments Challenge

Posted in Employment, U.S. Supreme Court

We’ve been reporting on the constitutional challenge to President Obama’s recess appointments to the National Labor Relations Board, which has serious implications for the recess appointment of Consumer Financial Protection Bureau head Richard Cordray. Yesterday, the Supreme Court granted the government’s unopposed petition for a writ of certiorari from the D.C. Circuit’s decision in Noel… Continue Reading

Court Allows Employer Discovery Into Whether EEOC Actually Investigated Before Filing Discrimination Suit

Posted in Employment

A quick tip to employers facing class actions brought by the Equal Employment Opportunity Commission (EEOC)—don’t forget about the EEOC’s statutory duty to investigate the claim before filing suit. Before the EEOC may file a lawsuit, an employee must have made a timely charge of discrimination of which the EEOC timely notified the employer and… Continue Reading

US Chamber of Commerce Takes Up Recess Appointments Fight in Supreme Court

Posted in Employment, U.S. Supreme Court

We’ve blogged about the D.C. Circuit’s ruling in Noel Canning v. NLRB (pdf) that President Obama’s three 2012 recess appointments to the National Labor Relations Board are unconstitutional. The consequence of that decision was to invalidate the NLRB decision against Noel Canning for lack of a quorum of NLRB members. The decision also cast a dark… Continue Reading

U.S. Seeks Supreme Court Review of Noel Canning v. NLRB in an Effort to Rehabilitate Recess Appointments to NLRB (and CFPB)

Posted in Employment, U.S. Supreme Court

We’ve previously written about the D.C. Circuit’s decision in Noel Canning v. NLRB, which held that President Obama’s three recess appointments in 2012 to the National Labor Relations Board (NLRB) are unconstitutional. The Solicitor General has just filed a petition for certiorari, asking the Supreme Court to review the D.C. Circuit’s decision. The Obama administration’s… Continue Reading

Supreme Court Holds that Plaintiff Whose Individual Claims Were Mooted by an Offer of Judgment Lacks Standing to Maintain FLSA Collective Action

Posted in Employment, U.S. Supreme Court

The Fair Labor Standards Act of 1938 (“FLSA”) permits an employee to file a “collective action” for damages against an employer individually and on behalf of other “similarly situated” employees who later choose to join the lawsuit. 29 U.S.C. § 216(b). In Genesis Healthcare Corp. v. Symczyk, before any other employee had opted to join… Continue Reading

Second Circuit Reverses Denial Of Individual Arbitration In Title VII Class Action

Posted in Arbitration, Employment

Since Concepcion, the plaintiffs’ bar has been exhorting courts to recognize exceptions to its holding that courts may not refuse to enforce an arbitration agreement on the ground that it precludes class actions.  In the employment context, the plaintiffs’ bar thought that it had a winner with Chen-Oster v. Goldman Sachs,  in which a magistrate… Continue Reading

California Supreme Court Grants Review In Employment Arbitration Case

Posted in Arbitration, Employment

The California Supreme Court granted review last week in Franco v. Arakelian Enterprises Inc., No. S207660, in which the California Court of Appeal had refused to enforce an agreement to arbitrate on an individual basis in the context of a wage-and-hour class action. For more on Franco, please see our prior post. The California Supreme… Continue Reading

Supreme Court to Decide Fair Labor Standards Act Case

Posted in Employment, U.S. Supreme Court

Employers frequently face “donning and doffing” collective actions under the Fair Labor Standards Act (FLSA).  In these lawsuits, plaintiffs accuse employers of failing to pay employees for off-the-clock time spent doffing and donning uniforms or safety gear at the beginning and end of every shift.  Today, the Supreme Court granted review in Sandifer v. United… Continue Reading

Seventh Circuit: A “Shapeless, Free-Wheeling” Trial Plan Is Grounds for Decertifying Class

Posted in Class Certification, Employment, Predominance, Rule 23(b)(2), Superiority

The Seventh Circuit’s recent decision in Espenscheid v. DirectSat USA, LLC—authored by Judge Posner—is full of good news for employers and other class-action defendants. The case is a hybrid collective action under the Fair Labor Standards Act (pdf) and opt-out Rule 23(b)(3) class action asserting state-law wage-and-hour claims. The plaintiffs—a group of home satellite-dish installers who… Continue Reading

Federal District Court Says That Plaintiffs Bringing Representative Claims Under California’s Private Attorney General Act Don’t Have To Seek Class Certification

Posted in Class Certification, Employment

The California Supreme Court held in Arias v. Superior Court that a plaintiff may bring a representative action on behalf of himself and other employees to recover civil penalties under California’s Private Attorney General Act (“PAGA”) without meeting California’s class-certification requirements. The court reasoned that, unlike a class action, where the plaintiff is suing on behalf… Continue Reading

DC Circuit Invalidates NLRB Recess Appointments, Undermining Many NLRB and Consumer Financial Protection Bureau Decisions

Posted in Employment

On January 25, 2013, the D.C. Circuit held in Noel Canning v. NLRB (pdf) that President Obama’s three recess appointments last year to the NLRB are unconstitutional.  The decision casts a shadow over every action taken by the NLRB since those appointments were made on January 4, 2012.  Moreover, because Richard Cordray received a recess appointment to… Continue Reading

How Much Discovery From Opt-Ins in FLSA Collective Actions Should Businesses Seek?

Posted in Class Certification, Employment, Motions Practice

A recent federal court decision has addressed the knotty issue of a defendant’s right to discovery in an FLSA collective action from the individuals who opt into the class after it is conditionally certified but before the court decides whether to grant final certification. The case, Scott v. Bimbo Bakeries, USA, Inc. (pdf), No. 10-3154 (E.D…. Continue Reading

Brinker’s Impact on Certification of Meal-Break Class Actions in California

Posted in Class Certification, Employment, Predominance

Class actions alleging that employers’ meal-break policies violate California law have long been a favorite of the plaintiffs’ bar.  Earlier this year, however, the California Supreme Court handed employers a victory in Brinker Restaurant Corp v. Superior Court, 53 Cal. 4th 1004 (Cal. 2012), holding that the obligation under the California Labor Code to provide… Continue Reading

California Court Of Appeal Strikes Down Arbitration Agreement In Wage-And-Hour Class Action Despite Concepcion

Posted in Arbitration, Employment

A California appellate court weighed in last week with another effort to circumvent the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion. In Franco v. Arakelian Enterprises, Inc. (pdf), a panel of the Court of Appeal in Los Angeles affirmed an order refusing to enforce an employee’s agreement to arbitrate disputes with his… Continue Reading

California Court of Appeal Upholds Time Entry Rounding in Wage and Hour Class Action

Posted in Employment

Many employers, especially in California, are targeted by wage and hour class actions.   A recent decision by the California Court of Appeal may provide employers with some much-needed relief (and certainty) about a common practice: rounding time clock entries. Both the U.S. Department of Labor and California’s Division of Labor Standards Enforcement permit employers to… Continue Reading