By Irina Constantin, Keith A. Goodwin and Laura Reathaford on Posted in FLSA,Uncategorized
Shortly after the California Supreme Court issued its 2012 decision in Brinker Restaurant Corp. v. Superior Court, employers saw an immediate uptick in appellate court decisions supporting the denial of class certification to plaintiffs in wage and hour lawsuits.… Continue Reading
Frank Moreno agreed, as a condition of his employment with Sonic-Calabasas A, Inc., to arbitrate all of this employment disputes with his employer. After terminating his employment with Sonic, Moreno filed an administrative wage claim with the Labor Commissioner for unpaid vacation pay. Filing such a claim is the first step toward obtaining a “Berman” … Continue Reading
By Charles J. Stiegler and Laura Reathaford on Posted in Uncategorized
In 2005, Congress passed the Class Action Fairness Act (CAFA), which creates federal jurisdiction over class actions involving more than 100 class members and $5 million in controversy. Plaintiffs have long attempted to avoid CAFA’s invocation of federal jurisdiction by stipulating to no more than $5 million in classwide damages. In Standard Fire Ins. Co. … Continue Reading
In the latest chapter in what is now a twelve-year legal battle, plaintiffs seeking to bring gender-based disparate treatment and disparate impact claims against Wal-Mart with regard to the retail giant’s pay and promotion decisions were again denied class certification in Dukes v. Wal-Mart Stores, Inc., No. CV 01-022520-CRB (N.D. Cal. Aug. 2, 2013). Following … Continue Reading
Arbitration clauses meant to prohibit class action arbitrations, whether in employment agreements or other documents, need to be reviewed after a recent Supreme Court decision. In Oxford Health Plans v. Sutter, ___ U.S. ____, No. 12-135 (June 10, 2013), the Court unanimously upheld an arbitrator’s ruling that a pediatrician could proceed with a class action … Continue Reading
The dissent in today’s Supreme Court decision on class certification, Comcast Corp. v. Behrends (PDF copy here), argues that “the decision should not be read to require, as a prerequisite to certification, that damages attributable to a classwide injury be measurable on a class-wide basis.” The dissenters may be the only ones who think so, though. … Continue Reading
Since the Supreme Court’s landmark decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), plaintiffs in wage and hour cases have urged courts to ignore the decision, arguing that it only applies to discrimination cases, not to wage and hour matters. Surprisingly, considering that the Court was interpreting Rule 23, which applies … Continue Reading
We’ve been watching the stuttering progress of Wang v. Chinese Daily News for some time. The plaintiffs brought a wide range of claims, alleging denial of overtime, meal breaks, wage statements, and timely pay after termination, under the FLSA and California law. The district court certified the class and a collective action, and the case … Continue Reading
On August 8, 2012, the U.S. Court of Appeals for the Seventh Circuit reversed an order certifying large classes in a lawsuit alleging race discrimination and hostile work environment. Bolden v. Walsh Construction Co., Case No. 12-cv-2205 (7th Cir. Aug. 8, 2012).… Continue Reading
The California Court of Appeal has confirmed that class action waivers are enforceable in California employment arbitration agreements.… Continue Reading
Yesterday, in a packed courtroom, the United States Supreme Court heard oral argument in Christopher v. SmithKline Beecham Corp., No. 11-204 (on appeal from the Ninth Circuit) to determine whether the pharmaceutical industry has been properly classifying its sales representatives as “exempt” from overtime for the past 75 years under the Fair Labor Standards Act’s … Continue Reading
Without any U.S. Supreme Court guidance, and little to none from the Circuit Courts, the trial courts facing FLSA decertification motions are making up their rulings mostly from scratch, and the results are all over the map. Although courts facing decertification motions generally apply the same three factors to determine if plaintiff pass the FLSA … Continue Reading
In AT&T Mobility v. Concepcion, 563 U.S. __, 131 S. Ct. 1740 (2011), the Supreme Court upheld a waiver of class arbitration in a consumer contract. Four recent moves have begun the process of responding to and exploring the boundaries of the Court’s decision.… Continue Reading
The Tenth Circuit ruled on Wednesday in Maestas v. Day & Zimmerman LLC (pdf) that an employee’s “primary duty” — which is the relevant inquiry in determining whether an employee is exempt from the Fair Labor Standards Act — is a question of fact, not a question of law. Although the ruling was a setback … Continue Reading
In a 2-1 decision, the California Court of Appeal held that representative actions under California’s Private Attorney General Act (PAGA) may not be waived in mandatory, pre-dispute employment arbitration agreements. (Brown v. Ralphs Grocery Co., Cal. Ct. App., No. B222689. This decision comes as something of a surprise in light of the U.S. Supreme Court’s recent ruling … Continue Reading
In Wal-Mart Stores, Inc. v. Dukes, No. 10-277 (U.S. June 20, 2011), the Supreme Court vacated class certification as to 1.5 million current and former Wal-Mart employees who failed to identify a company-wide policy or practice of gender discrimination. Additionally, the Court held that backpay claims could not be certified as a class action, and rejected … Continue Reading
In a case possibly signaling a new direction in California wage and hour law, a California appellate court ruled Friday that a class of car dealers fell within the commissioned salesperson exemption to California overtime laws despite receiving flat fee commissions instead of commissions calculated as a percentage of the price of the cars sold.… Continue Reading
These days, a union protest or picket that doesn’t include a 16-foot inflatable rat, well, just isn’t really a protest. Expect to see more of them after the Board’s decision yesterday in Brandon Regional Medical Center (pdf). (For an enormous compilation of rat photos, see this link). The Board held that the ubiquitous rat may … Continue Reading
In recent years the U.S. Supreme Court has consistently favored arbitration against efforts to limit it, so long as the parties’ intent to arbitrate is clear. In 14 Penn Plaza v. Pyett, in which Proskauer represented the Petitioner, the Court held that parties to a collective bargaining agreement can require bargaining unit members to arbitrate discrimination claims … Continue Reading
Although the questions were flying in both directions yesterday, as usual for the Supreme Court, the tone of the Justices’ interaction suggested that Wal-Mart has the edge over the plaintiffs. As others have reported, Justices Kennedy and Scalia were quite skeptical of the plaintiffs’ theory that store-by-store discretion could be characterized as a common policy … Continue Reading
The Supreme Court, not surprisingly, granted Wal-Mart’s petition for certiorari today, agreeing to review the 500,000-member class certification decision from the Ninth Circuit, which had held 6-5 that the class could be certified, even though, as Judge Kozinski wrote, the class members held a multitude of jobs, at different levels of Wal-Mart’s hierarchy, for variable … Continue Reading
The post-oral-argument betting is that the Supreme Court will uphold California’s prohibition on class action waivers in arbitration agreements, in AT&T v. Concepcion — through some combination of conservative Justices concerned about protecting states’ rights and less conservative judges concerned about unconscionability.… Continue Reading
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