Wage & Hour Litigation Blog

Category Archives: Conditional Certification

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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… Continue Reading with the Second Circuit Court of Appeals, arguing in support of the Hearst unpaid interns, who are appealing the Southern District

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


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

Don’t Take it to the Bank: Judge Denies Conditional Certification of PNC Assistant Branch Managers

Posted in Conditional Certification, Defenses

Co-authored by Abad Lopez and Noah Finkel

Despite the lenient standard employed by many courts on motions for conditional certification, a federal judge in Pennsylvania recently denied conditional certification of an FLSA collective action based on scant factual support.  In Moore v. PNC Bank, N.A. [here], the court concluded that the plaintiff could not bring her claim as a collective … Continue Reading

New York Court Rules Sous Chef’s Conditional Certification Motion Should Have Been Meatier

Posted in Conditional Certification, Overtime

Co-authored by Brett Bartlett and Kevin Young

This week, a federal judge in the Southern District of New York confirmed that an FLSA plaintiff cannot win certification of a sweeping collective action by talking only about himself. 

In Ikikhueme v. Culinart, Inc., [here] a Sous Chef originally sought to represent a class of all food services employees, not just … Continue Reading

District Court “Tips” The Scale In Favor Of Restaurants On Server’s Tip Credit Class Claim

Posted in Conditional Certification, Defenses, Service Charges/Gratuities

Co-authored by Arthur J. Rooney and Jeremy W. Stewart

When should a tipped employee no longer be treated as a tipped employee?  Plaintiffs’ lawyers argue that restaurants cannot utilize the tip credit, or pay tipped employees a sub-minimum wage, if tipped employees perform any “non-tipped” duties, such as washing dishes or taking out the trash.  Earlier this week, a District … Continue Reading