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 more noteworthy cases—that so far have come out in opposite ways—are currently pending in the Southern District of New York: Glatt v. Fox Searchlight Pictures and Wang v. Hearst Corporation (pdf).

In Fox Searchlight, former interns from the film Black Swan alleged that they
Continue Reading The Fate of Hollywood Internship Programs May Rest With the Second Circuit

We frequently help companies address how to manage dispute resolution with their customers and employees—and in particular, how to make use of arbitration as a fair alternative to litigation in court (including class actions).  As a result, we have a great deal of experience with drafting new arbitration agreements and helping companies fine-tune their existing agreements.  We provide some of our insights in  a recent article published in the Spring 2013 issue of the ABA’s Dispute Resolution Magazine called Getting Under the Hood: A Practical Guide to Drafting Consumer and Employee Arbitration Agreements (pdf).  We hope that readers
Continue Reading How to Draft Fair and Enforceable Consumer and Employee Arbitration Agreements

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 the EEOC must have investigated the charge, determined that there was reasonable cause to sue, and attempted conciliation with the employer. 42 U.S.C. § 2000e-5(b), (e).

Courts generally have rejected attempts by employers to call into question the sufficiency of the EEOC’s pre-suit investigation.
Continue Reading Court Allows Employer Discovery Into Whether EEOC Actually Investigated Before Filing Discrimination Suit

Carlton Fields recently published a survey (pdf) of 368 general counsel and other in-house counsel at major companies across more than 25 industries regarding the class actions they faced in 2012 and their expectations for 2013. A number of the findings were quite interesting:

  • In-house counsel reported that their companies spent $2.1 billion on class actions in 2012, a slight decline from 2011. Per-company spending, however, varied widely, with some companies spending $100 million a year and some as little as $180,000. The per-company average was $3.19 million.
  • In 2012, the typical class action cost $671,100 annually, a


Continue Reading In-House Counsel Predictions of Class Action Trends

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 decision to seek Supreme Court in Noel Canning is unsurprising. By invalidating the recess appointments to the NLRB, the D.C. Circuit’s decision undermines every action by the NLRB since those appointments were made on January 4, 2012. The decision also casts 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)

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 the suit, the defendant made an offer of judgment to the named plaintiff for the full relief sought by her individual claims. Today, the Supreme Court held—by a 5-4 vote—that the district court had properly dismissed the FLSA collective action for lack of
Continue Reading Supreme Court Holds that Plaintiff Whose Individual Claims Were Mooted by an Offer of Judgment Lacks Standing to Maintain FLSA Collective Action

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 judge concluded (and a district court agreed) that Title VII bars enforcement of such agreements when the named plaintiff seeks to rely on “pattern-or-practice” evidence of discrimination.  Last week, however, the Second Circuit reversed Chen-Oster and closed the loophole in Parisi v. Goldman,
Continue Reading Second Circuit Reverses Denial Of Individual Arbitration In Title VII Class Action

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 Court explained that it will hold its disposition of Franco pending its decision in Iskanian v. CLS Transportation of Los Angeles, another case involving arbitration and wage-and-hour class actions. We have discussed Iskanian in more detail in a prior post.  
Continue Reading California Supreme Court Grants Review In Employment Arbitration Case

The Seventh Circuit’s recent decision in Espenscheid v. DirectSat USA, LLCauthored 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 were paid by the job rather than by the hour—sued their employer for allegedly failing to ensure that they were paid the federal minimum wage and time-and-a-half for overtime work. The district court initially certified the collective and class actions, but decertified
Continue Reading Seventh Circuit: A “Shapeless, Free-Wheeling” Trial Plan Is Grounds for Decertifying Class

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. Pa. Dec. 11, 2012), featured a claim that the defendant’s delivery drivers—who were independent contractors—were de facto “employees” and thus entitled to various remedies under the FLSA. After the court conditionally certified the collective action, roughly 650 individuals opted into the class. To prepare
Continue Reading How Much Discovery From Opt-Ins in FLSA Collective Actions Should Businesses Seek?