Wage & Hour Litigation Blog

Category Archives: Conditional Certification

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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

TO MOOT OR NOT TO MOOT—THE FIRST FLSA CASE IN TEXAS TO GRAPPLE WITH THE GENESIS HEALTHCARE RULING

Posted in Conditional Certification, Offer of Judgment

Authored by Steve Shardonofsky

What happens when an object with greater mass collides with a smaller object?  Yes, the smaller object typically bears the brunt of the force and splits into two or more pieces.  According to a recent decision by Judge Keith Ellison of the Southern District of Texas, this is exactly what happens when Fifth Circuit precedent collides … Continue Reading

Two Stones, One Bird: Employer’s Simultaneous Motions For Summary Judgment and Decertification Pay Off in Arkansas

Posted in Conditional Certification, Off-the-Clock Issues, Overtime

Co-authored by Benjamin Briggs and Kevin Young

How do you show a judge that the inquiries necessary to resolve the claims of the class in an FLSA collective action are too individualized for a single trial?  In some cases, the best approach is to file two motions—one for summary judgment on the class members’ claims, and the other to decertify … Continue Reading

Now Showing On A DVD Player Near You: The Lenient-Standard Monster

Posted in Conditional Certification, Defenses

Authored by Noah Finkel and Dennis Clifford

We often question the utility of the “lenient standard” for conditional certification under the FLSA.  All too often, courts grant conditional certification of a collective action based on nothing more than a recitation of the “lenient standard” involving a “modest factual showing,” followed by reference to scant evidence that provides no insight into … Continue Reading