Wage & Hour Litigation Blog

Category Archives: Conditional Certification

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No Fees For You: Second Circuit Holds Expert Fees Are Not Recoverable Under FLSA

Posted in Conditional Certification, Rule 23 Certification

Co-authored by Robert S. Whitman and Howard M. Wexler

Expert witness fees are not recoverable under the FLSA. So held the Second Circuit in a decision that highlights a strategy we have previously discussed for employers to fend off class/collective actions.

In Gortat v. Capala Brothers, Inc., the plaintiffs alleged that they were denied wages, including overtime compensation, throughout … Continue Reading

Genesis Healthcare May Be Merely the First Book in Bible on Mooting Class/Collective Actions

Posted in Conditional Certification, Rule 23 Certification

Authored by Steve Shardonofsky

In the beginning, the U.S. Supreme Court decided in Genesis Healthcare that an FLSA case is moot when the plaintiff accepts an offer of full relief. As we noted in our previous blog, the decision left open, however, the question of what happens when the plaintiff affirmatively declines the offer or when the offer expires, … Continue Reading

Out of the Pizza Oven, Into the Fire: Any Way You Slice It, Lenient Standard at Conditional Certification Stage Doesn’t Cut It

Posted in Conditional Certification, Decertification

Co-authored by Abad Lopez and Noah Finkel

The two-step “send notice now/worry later” approach to FLSA collective actions — in which courts approve notice to potential collective action members under the lenient standard but comfort defendant-employers with the bromide of “don’t worry, we can revisit the issue at the decertification stage under a more rigorous standard” — continues to leave … Continue Reading

Taking a Pass on a “Reclass” Class (or Collective): Court Denies Reclassified Employees’ Certification Motion

Posted in Conditional Certification

Authored by Jessica Lieberman

The decision whether to reclassify employees whose exempt status is arguable can sometimes create something of a double bind for employers: reclassification should be the conservative approach, but it also can be risky if it is interpreted as evidence that the prior classification was wrong.  For this reason, employers may fear that reclassification aimed at reducing … Continue Reading

Seyfarth Shaw Attorneys Author the 2015 Update to the Definitive Guide to Litigating Wage & Hour Lawsuits

Posted in Conditional Certification, Hybrid Lawsuits, Rule 23 Certification

Leading employment law firm Seyfarth Shaw has updated its definitive guide to the litigation of wage and hour lawsuits. Co-authored by three Seyfarth partners and edited by the chair of the firm’s national wage-hour practice, Wage & Hour Collective and Class Litigation is an essential resource for practitioners. The unique treatise provides insight into litigation strategy through all phases … Continue Reading

2014 Wage Hour Wrap Up

Posted in Arbitration Agreements, Conditional Certification, DOL Enforcement, Misclassification/Exemptions, Off-the-Clock Issues, Overtime, State Laws/Claims

Co-authored by Richard Alfred and Patrick Bannon

2014 saw no letup in the deluge of wage and hour litigation.  Year-to-year, federal wage and hour lawsuits filed in federal courts increased by another 4.7%, bringing the total increase in federal court wage and hour cases over the past decade to more than 238%.  With the increase in litigation in this area, … Continue Reading

Full Disclosure To Plaintiffs: Failure To Prevail In An FLSA Case Could Cost You

Posted in Conditional Certification

Co-authored by Noah Finkel and Kara Goodwin

When negotiating a collective action notice to potential opt-in plaintiffs upon an order for or agreement to conditional certification, a defendant-employer often seeks to include language in the notice that if plaintiffs lose the case, they may be liable to the defendant for costs.  Not surprisingly, plaintiffs’ counsel usually resists including such a … Continue Reading

Hitting the Unpaid Intern Trifecta: Litigation, Certification, and Settlement

Posted in Conditional Certification, DOL Enforcement, Overtime

Co-authored by Adam Smiley and Nadia Bandukda

With the Kentucky Derby less than a month away, we have a trifecta of unpaid internship developments for you:

First, On April 4th, the U.S. Department of Labor filed an amicus brief with the Second Circuit Court of Appeals, arguing in support of the Hearst unpaid interns, who are appealing the Southern District… Continue Reading

Ma (Labs) Knows Best—California Court Uses Comcast To Reject Certification Of An Off-The-Clock Claim

Posted in Conditional Certification, Hybrid Lawsuits, Rule 23 Certification

Co-authored by Coby M. Turner and Laura J. Maechtlen

California is bringing Comcast home—last week, California employers were the beneficiary of some down-home wisdom coming out of San Francisco. 

Giving some sage advice to the wage and hour community, Judge Alsup in Lou et. al. v. Ma Laboratories, Inc., denied conditional and class certification to a broad class of … Continue Reading