California%20Court%20of%20Appeals%20Seal2.pngCo-authored by Tim Nelson and Brandon McKelvey

The California Court of Appeal has issued a published decision holding that denial of class certification in one lawsuit may not prevent similar class action claims in a later lawsuit.  On January 18, 2012, in Bridgeford v. Pacific Health Corporation, the court expressly disagreed with a prior Court of Appeal decision from the same district that held collateral estoppel could prevent class actions that are similar to prior cases where class certification was denied.

In Bridgeford, the plaintiffs filed a class action complaint against Pacific Health Corporation and other hospitals and health care entities for various violations of California’s wage and hour laws.  The defendants demurred to the complaint on the grounds that the plaintiffs were collaterally estopped from seeking class certification because class certification was denied in a prior action that involved the same causes of action and subclasses that were similar to those in Bridgeford.  The trial court sustained the defendants’ demurrer in Bridgeford on these grounds and dismissed the plaintiffs’ complaint in its entirety. 

The Court of Appeal reversed, holding that the prior denial of class certification does not bar the claims of absent putative class members in a subsequent suit.  The court relied heavily on a recent United States Supreme Court decision, Smith v. Bayer Corporation, which held that a federal court could not enjoin a state court from considering a plaintiff’s request to approve a class action when a federal court had denied a motion for class certification in a case with similar claims brought by a different plaintiff against the same defendant.  Relying on Smith, the Court of Appeal expressly disagreed with Alvarez v. May Dept. Stores Co., a decision from a Court of Appeal in the same district.  Alvarez held that denial of class certification could collaterally estop absent class members from re-litigating class certification in a subsequent lawsuit.  Reaching the opposite conclusion, the court in Bridgeford held that the denial of class certification cannot establish collateral estoppel against unnamed putative class members on any issue because unnamed putative class members were neither parties to the prior proceeding nor represented by a party to the prior proceeding.

This decision has important implications for employers facing class actions in California.  The holding in Bridgeford will make it harder for employers to rely on the denial of class certification in a prior class action to preclude copy-cat class actions. 

time-clock_preview.jpgCo-authored by Jeffrey Berman and Brandon McKelvey 

We recently reported that a San Diego Superior Court found that See’s Candy Shops violated California law by rounding employee time entries to the nearest six minutes.  The Fourth District Court of Appeal let the ruling stand.  Yesterday the Supreme Court ordered the Court of Appeal to review the case and decide the rounding issue.

In September, the San Diego Superior Court found that See’s Candy Shops violated California law by rounding employee time entries to the nearest six minutes. See’s Candy petitioned the California Fourth District Court of Appeal for review and the petition was denied. See’s then petitioned the California Supreme Court for review. Organizations representing employers, including Seyfarth Shaw, filed amicus letters urging appellate review of the trial court’s ruling because of the widespread concern to California employers on the issue of rounding.  The Supreme Court granted the petition for review and ordered the Fourth District Court of Appeal to review and decide the case.

For years, the position of both the US Department of Labor (“DOL”) and the California Division of Labor Standards Enforcement (“DLSE”) has been that rounding employee time entries is lawful. The DOL’s regulations and the DLSE enforcement manual permit rounding “to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour.” Both the DOL’s regulations and the DLSE’s enforcement manual note, however, that rounding is acceptable provided that the practice is used “in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” In the case against See’s Candy, the San Diego Superior Court went against the DOL and DLSE interpretations and found that an unbiased rounding procedure violated California law, which according to the court, required payment for all time worked.

There have been a growing number of class action lawsuits in California challenging employer rounding practices and employers are concerned that the ruling in See’s will lead to a wave of class actions against thousands of employers who round time entries in California. Now that the Fourth District Court of Appeal must review the case and decide this issue, employers may soon receive clarity on this issue. In the meantime, however, employers in California who round employee time entries should be aware of the potential threat for litigation and should review their rounding policies and practices with counsel to evaluate potential issues and exposure.

USDCSDNY.jpgAuthored by Robert S. Whitman

Rejecting the views of the National Labor Relations Board and one of her colleagues on the bench, Judge Barbara Jones of the Southern District of New York has ruled that employees subject to arbitration agreements may be required to arbitrate FLSA claims, even though the agreements do not permit the claims to be pursued on a collective basis.

In LaVoice v. UBS Financial Services, Inc., Judge Jones granted the employer’s motion to compel individual arbitration of a former Financial Advisor’s claims for unpaid overtime.  Although the plaintiff argued that he must be permitted to assert his claims collectively, the court held otherwise, finding the argument precluded by the Supreme Court’s 2011 decision in AT&T Mobility v. Concepcion.

As we previously reported, Judge Robert Sweet, also of the Southern District of New York, concluded in Rainere v. Citigroup, Inc., that the right to pursue FLSA claims by means of a collective action is a substantive right that cannot be waived in an arbitration agreement, notwithstanding Concepcion.  The LaVoice decision takes the directly opposite position on that issue.

LaVoice was a UBS Financial Advisor from 2002-2010.  In response to his lawsuit, brought as a putative class and collective action under the FLSA and New York law, UBS filed a motion to compel arbitration based on various documents LaVoice signed or received during his employment.  Those documents contained provisions stating that LaVoice “waive[d] any right to commence, be a party to or an actual or putative class member of any class or collective action arising out of or relating to [his] employment with UBS.”  UBS sought to enforce this provision and require LaVoice to arbitrate solely on his own behalf and not as part of a class or collective.

LaVoice opposed UBS’s motion.  He argued in part that, notwithstanding Concepcion, in which the Supreme Court held that the Federal Arbitration Act preempts a rule of state law under which class action waivers in arbitration agreement were deemed unconscionable, he could not be compelled to arbitrate solely for himself because he had the right under federal law (the FLSA) to pursue his claims on behalf of a collective.

Judge Jones disagreed.  She said that LaVoice’s argument was precluded by Concepcion, which “stand[s] against any argument that an absolute right to collective action is consistent with the FAA’s ‘overreaching purpose’ or ‘ensur[ing] the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings.’”

In reaching this holding, Judge Jones acknowledged, but refused to follow, Judge Sweet’s decision in Rainere as well as the NLRB’s January 3, 2012 ruling in D.R.Horton, Inc.  In D.R. Horton, the NLRB held that arbitration agreements with class or collective action waivers are unenforceable under the National Labor Relations Act because, in the Board’s view, class or collective actions constitute “protected concerted activity” within the meaning of Section 7 of the Act.

Turning to LaVoice’s specific circumstances, Judge Jones went on to hold that his claims for unpaid overtime, which he valued at $127,000 to $132,000, were sufficiently valuable, standing on their own, that he did not need the vehicle of a class or collective action to vindicate his rights.  By so holding, she distinguished the Second Circuit’s holding in In Re American Express Merchants’ Litigation, in which the court held (before Concepcion) that a class action waiver may be unenforceable if the value of the class members’ individual claims was too small to pursue individually.  (The continuing validity of American Express remains in doubt in light of Concepcion.)

Judge Jones was particularly unimpressed by the argument advanced by LaVoice and his counsel that, notwithstanding the value of his individual claim, they would be disinclined to pursue them on an individual basis, and so should be permitted to do so collectively.  In no uncertain terms, she said:  “LaVoice has cited to no authority to support any argument that the Court should give consideration to his and counsel’s unwillingness to pursue his claims in the absence of a class, and particularly given the real damages at issue, the Court cannot help but find LaVoice and counsel’s statements to be self-serving and irrelevant.”

As noted, the Rainere decision is pending before the Second Circuit.  LaVoice adds fuel to the arguments sure to be advanced by the appellant there:  that agreements providing for individual arbitration of FLSA claims, and barring claimants from proceeding on a class or collective basis, are permissible in light of Concepcion.  We will continue to track developments in these cases and will report further with any updates.

 

California%20Court%20of%20Appeals%20Seal2.pngCo-Authored by Tripper Ortman and Robb McFadden

Insurance agents and other types of salespeople with the discretion to determine when, how, and whether to sell a company’s products may properly be classified as independent contractors, according to the California Court of Appeal’s recent holding in Arnold v. Mutual of Omaha Insurance Company — the first California decision to detail the circumstances under which insurance agents, and potentially other types of salespeople, may be classified as independent contractors. The Arnold court utilized California’s Borello “control test” — a test similar to other control tests used in jurisdictions around the country — to determine whether the plaintiff was correctly classified as an independent contractor. The court’s analysis provides a checklist of relevant factors for employers to consider when determining whether a particular worker should be classified as an independent contractor or an employee, as well as a roadmap for summary judgment in cases where the independent contractor status is challenged.

The Facts

Plaintiff Kimbly Arnold, a former insurance agent for Mutual of Omaha, brought a putative class action seeking the reimbursement of necessary business expenses, and penalties for the untimely payment of final wages upon termination of her relationship with Mutual of Omaha. Arnold also asserted a derivative cause of action for unfair competition.

Mutual moved for summary judgment, arguing that Arnold could not recover for the Labor Code violations alleged because those provisions applied only to “employees,” and Arnold was properly classified as an independent contractor. The lower court applied the common law test for independent contractor/employee status set forth in S. G. Borello & Sons, Inc. v. Dept. of Industrial Rel., 48 Cal.3d 341 (1989), found that Arnold was properly classified as an “independent contractor,” and granted Mutual’s motion for summary judgment. Arnold appealed.

The Court’s Decision in Arnold

The Court of Appeal rejected Arnold’s argument that division 3 of the Labor Code provides a statutory definition of the term “employee.” Instead, the court agreed with the trial court and held that the common law Borello test (also known as the “control test”) should be used to determine whether Arnold was an employee or an independent contractor.

Applying Borello, the Court of Appeal affirmed that Arnold was properly classified as an independent contractor because “Mutual had no significant right to control the manner and means by which Arnold” sold its products. As the court explained, “Arnold used her own judgment in determining whom she would solicit for applications for Mutual’s products, the time, place, and manner in which she would solicit, and the amount of time she spent soliciting for Mutual’s products.” Moreover, while Mutual offered several resources to its agents (such as training, office space, and prospecting accounts), agents were not required to take advantage of them. The court also was persuaded by the fact that Arnold’s appointment was non-exclusive, as she simultaneously contracted with multiple insurance companies to offer her clients competing products. 

Analyzing the secondary Borello factors, the court found that several factors weighed in favor of finding that Arnold was an independent contractor and not an employee: she was engaged in a “distinct profession” and was responsible for maintaining her own license with the California Department of Insurance; she was responsible for providing most of her own instrumentalities or tools needed to sell insurance; and was paid a commission “based on her results and not the amount of time she spent working on Mutual’s behalf.” The court also noted that the inclusion of an at-will provision in an independent contractor agreement “is not by itself a basis for changing that relationship to one of an employee,” particularly where both parties believed that they were creating an independent contractor relationship.

Lastly, the court brushed aside Arnold’s argument that summary judgment was inappropriate unless the Borello factors unanimously established that she was an independent contractor (i.e., that summary judgment must be denied if a single factor weighed in favor of an employment relationship). As the court explained, it had “little difficulty” affirming summary judgment in Mutual’s favor because “while the existence and degree of each factor is a question of fact, … the legal conclusion to be drawn from those facts is a question of law.”

What Arnold Means for Employers

Although the court in Arnold did not indicate whether any single factor tipped its analysis, it is clear that Mutual’s agent program — which permitted agents to determine when, how, and whether to sell Mutual’s products, and imposed minimal direct supervision and established results-oriented performance standards — was critical in leading the court to conclude that the plaintiff was properly classified as an independent contractor. Because the Arnold court determined that the common law Borello control test was the appropriate test to analyze employment status in California—and many jurisdictions around the country employ similar control tests—this decision should have far-reaching implications for the insurance and other industries that employ independent contractor salespeople outside California. Post-Arnold, companies that utilize independent contractors to sell their products in such states may apply the analysis in Arnold as a benchmark to assess and review these relationships in order to determine whether changes should be made.

CD_CA_seal.jpgCo-Authored by Brandon McKelvey and Sophia Kwan

Yesterday, Federal District Court Judge John A. Kronstadt (Central District of California) denied certification to a proposed class of over 5,000 grocery employees at all WinCo Foods warehouse grocery stores in California.  In Hughes v. WinCo Foods, plaintiffs sought to certify a class of all hourly employees at WinCo stores in California on “late” meal period claims.  Plaintiffs alleged that WinCo failed to provide the grocery employees with meal periods during the first five hours of their shifts.  Citing the recent Supreme Court decision in Dukes, Judge Kronstadt found plaintiffs failed to establish the Rule 23 class certification requirements because WinCo gave store and department managers discretion over the timing and arrangement of meal periods.  As a result, the decision-making with respect to when employees took meal periods varied from store to store and department to department such that the timing of meal periods could not be proven reliably on behalf of the class with evidence in “a single stroke.” 

WinCo operates thirty large discount warehouse grocery stores in California.  Each WinCo store has up to fifteen different departments, most of which are managed by hourly employees known as department managers.  Plaintiffs claimed that WinCo required manager permission for employees to take a meal period and therefore had control over the timing of meal periods, which according to plaintiffs distinguished the case from the Brinker decision that is currently pending before the California Supreme Court.  Judge Kronstadt, however, adopted Seyfarth’s argument that managers had discretion to manage and arrange meal periods in varying ways in different departments thereby destroying commonality.  Also, because plaintiffs assigned partial responsibility for the alleged meal break violations to their supervisors (fellow hourly employees), and simultaneously sought to represent the same supervisors, the Court found there was a potential conflict of interest that raised concerns about adequacy of representation making the proposed class inappropriate. 

Relying on favorable deposition testimony and declarations obtained by Seyfarth showing wide variability of meal period practices from department to department and employee to employee, Judge Kronstadt concluded that plaintiffs “failed to carry their burden ‘affirmatively [to] demonstrate’ that the alleged meal period violations were the result of a common policy or practice, or otherwise demonstrate the predominance of common questions.”  Because of the substantial individualized inquires that would be necessary to adjudicate plaintiffs’ “late” meal period claim, the Court determined that the class action would devolve into hundreds or thousands of “mini-trials” and the superiority requirement was not met.

This case is another example of a federal court using Dukes to support denial of class certification, which is a growing trend previously reported on this blog. 

classactionpicture.jpgAuthored by Laura Reathaford

A California federal district court judge has refused to certify a putative class of Verizon FiOS technicians who claimed they were misclassified as exempt from California’s overtime requirements.  

Plaintiffs sought certification under Rule 23(b)(3) on the basis that Verizon had a common policy of misclassifying its First Level Managers (“FLMs”).  However, the Court rejected this frequently alleged “common policy” argument finding that the ultimate question of whether Verizon unlawfully classified FLMs as exempt “is an individualized inquiry involving facts unique to each Plaintiff.”  The Court noted that in order to win certification, it is not enough merely to allege a common scheme.  A plaintiff must establish the reasons why each FLM was treated in an allegedly unlawful manner.

In this regard, the Court relied heavily on the U.S. Supreme Court’s decision in Dukes v. Wal-Mart, noting that ‘[w]ithout some glue holding the alleged reasons for those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.”  The evidence before the Court revealed that FLMs had different job duties and carried out these duties in a variety of ways based on the location and size of each FLM’s respective worksite, the number of employees assigned to each worksite and its business volume as well as the experience level of the employees and the type of work actually performed.

Is the Verizon decision indicative of a new trend in post-Dukes class and, by extension collective, action litigation?  Class actions alleging state wage and hour violations have, in the past, frequently been certified.  However, as Dukes points out, “the class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties” and in fact, more and more district courts are applying Dukes to deny certification in misclassification cases.  Whether this means that fewer misclassification and other types of wage and hour claims will be certified in the future remains to be seen.  At least for now, Verizon might say that in 2012, the rule in Dukes rings true.

9th_Cir_seal.jpgCo-authored by Brandon McKelvey and Fred Sanderson 

Citing the Supreme Court’s recent decision in Dukes v. Wal-Mart, on December 30, 2011, the Ninth Circuit vacated its prior decision reversing a district court’s denial of class certification under Federal Rule of Civil Procedure 23(b)(2). The Ninth Circuit’s unpublished memorandum in Sepulveda v. Wal-Mart Store, Inc., indicates that the Supreme Court’s decision in Dukes compelled the Ninth Circuit to reverse course.

The underlying case sought to certify a class of current and former assistant mangers of Wal-Mart who alleged they were misclassified as exempt from overtime requirements. Plaintiffs sought certification under Rule 23(b)(2) on grounds that class injunctive relief was appropriate, and under Rule 23(b)(3) on grounds that common questions of law and fact predominated on the misclassification issue. In 2006, a judge in the Central District of California denied class certification under both Rule 23(b)(2) and Rule 23(b)(3). As to Rule 23(b)(2), the court held that class certification was not appropriate because the monetary relief was not incidental to the injunctive relief sought, as plaintiffs were primarily seeking monetary relief in the form of overtime payments. On appeal, the Ninth Circuit reversed in part and held that the district court abused its discretion by denying class certification under Rule 23(b)(2) because it relied on the “not incidental test” not followed by the Ninth Circuit at the time. Wal-Mart then filed a petition for rehearing and the Ninth Circuit stayed its decision pending the Supreme Court’s decision in Dukes v. Wal-Mart.

Last Friday, the Ninth Circuit vacated its prior order, acknowledging that the Supreme Court in Dukes explicitly adopted the “not incidental” test for certification under Rule 23(b)(2), and clarified that Rule 23(b)(2) “does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.” Because the putative class members primarily sought individual overtime payments and fewer than half of the putative class would benefit from injunctive relief, it was not an abuse of discretion for the district court to conclude that the monetary relief sought was not incidental to the injunctive relief.

The Ninth Circuit ruling ends plaintiffs’ quest for class certification against Wal-Mart on assistant manager misclassification claims. This decision is consistent with other recent rulings from other district courts in the Ninth Circuit denying class certification based on Dukes in manager-misclassification suits, including similar cases against Dollar Tree and WinCo previously reported on this blog.

clock_money.jpg

Seyfarth attorney C.J. Eaton published an article in the Winter (2012) edition of the Northeast Human Resources Association’s (“NEHRA“) Insights magazine.  The article “The A to Z of the Massachusetts Wage Payment Law” aims to assist employers in answering some of the difficult questions employers struggle with concerning the Massachusetts Wage Payment Law.

125px-CA_SC_seal.pngAuthored by Kimberly Brener.

On December 29, 2011, four years after granting review, the California Supreme Court decided Harris v. Superior Court, holding that the Court of Appeal mistakenly concluded that claims adjusters, as a matter of law, do not qualify for the administrative exemption.  Employment lawyers had hoped that the Supreme Court would use this occasion to provide some definitive guidance for the employer community.  Instead, the Court simply held that the Court of Appeal had improperly applied the “administrative/production worker dichotomy” as a dispositive test. 

Liberty Mutual claims adjusters filed a class action alleging that Liberty Mutual misclassified them as exempt administrative employees.  The trial court denied plaintiffs’ motion for summary adjudication on Liberty Mutual’s administrative exemption affirmative defense, but the Court of Appeal reversed the trial court and held that the administrative exemption did not apply to the claims adjusters as a matter of law.  Specifically, the Court of Appeal strictly applied the “administrative/production worker dichotomy” test set forth in the Bell v. Farmers Insurance Exchange cases and held that adjusting claims was part of the “product” that their employer sold and therefore not an administrative duty. 

While the administrative exemption analysis depends on multiple factors, the Harris decision was focused on only one, whether the employees’ work qualified as administrative.  The California Supreme Court broke this analysis down into two components, one “qualitative” (i.e., whether the work is administrative in nature) and the other “quantitative” (i.e. whether it is of “substantial importance” to the employer’s management policies or general business operations).   

In reversing the Court of Appeal, the California Supreme Court distinguished Bell.  First, the Court noted that the Bell opinions limited their holding to the specific facts of that case.  Second, the Court noted that the analysis employed by the court in Bell was dependent on its conclusion that the applicable Wage Order at that time (Wage Order 4-1998) did not provide a sufficient definition of the administrative exemption, thereby requiring the Bell court to look beyond the Wage Order’s language.  In contrast, Wage Order 4-2001 (the current and operative Wage Order in Harris) incorporated specific federal regulations and contained “detailed guidance” concerning the administrative exemption.  By relying on Bell’s application of the administrative/production dichotomy, the Court of Appeal in Harris erred by using the dichotomy rather than applying the language of the relevant wage order and regulations. 

The Supreme Court ultimately declined to adopt a rule precluding the use of the dichotomy as an analytical tool.  Instead, the Court held that, in determining whether work is administrative, courts must consider the particular facts before them and apply the language of the statutes and wage orders at issue.  If the statutes and wage orders fail to provide adequate guidance, the Court held it would be appropriate to consider other sources, including, presumably, the administrative/production dichotomy.

The only concrete guidance from the California Supreme Court in Harris is that the administrative/production dichotomy is not a dispositive test for the administrative exemption.  The Court left open the possibility that the dichotomy may still apply in future cases.  Employers who were looking for more specific guidance from the Court on the administrative exemption will be disappointed, as, even after Harris, determining whether an employee satisfies the administrative exemption remains a highly fact-specific venture.

Southern District of New York.bmpAuthored by Noah Finkel

Since the Supreme Court’s decision earlier this year in AT&T Mobility LLC v. Concepcion, nearly all federal courts that have been faced with the issue, have enforced collective action waivers of federal wage-hour claims in arbitration agreements, assuming that the agreement was not unconscionable under state law.  But a troubling recent decision by a federal district court judge in the Southern District of New York distinguishes class action waivers of state wage-hour claims, which it found generally enforceable, from collective action waivers under the Fair Labor Standards Act, which this judge concluded are per se unenforceable.

 If this ruling is adopted by other courts, it could allow employees complaining of alleged FLSA violations to proceed on a collective action basis and be permitted to issue notice to purportedly similarly-situated current and former employees, despite their agreement to bring wage-hour claims only in arbitration on an individual basis.  Employers’ mandatory arbitration programs containing class and collective action waivers, would therefore lose much of their efficacy.  Indeed, even if this ruling is allowed to stand in a single circuit – here, the Second – that circuit quickly would become a favored forum by plaintiffs’ counsel seeking to bring nationwide collective actions.

In Raniere v. Citigroup, Inc., mortgage loan officers filed a hybrid FLSA opt-in collective action and New York law opt-out Rule 23 class action claiming that they were misclassified as exempt from the FLSA’s overtime requirements and thus owed back overtime pay and liquidated damages.  The employer moved to compel arbitration of the claims brought by the employees who had signed arbitration agreements that, among other things, provided that FLSA claims could only be brought in arbitration and, then, only on an individual basis.

Plaintiffs made two arguments that the collective action waiver was unenforceable.  First, consistent with another recent decision out of the Southern District of New York, the plaintiffs argued that, relative to their potential recovery, the costs and fees attendant to bringing the claim on an individual, rather than collective, basis effectively barred them from bringing suit at all.  Given the substantial back overtime pay and liquidated damages that plaintiffs sought, the court rejected this argument. 

Second, Plaintiffs argued broadly that giving effect to the collective action waiver would mean that the FLSA would not serve its remedial and deterrent functions.  Relying on authorities, including the Supreme Court’s decision in Gilmer v. Interstate/Johnson Lane Corp., several circuit courts have ruled that collective action waivers under the FLSA are enforceable, including the Third, Fourth, Fifth, Sixth, Seventh, and Ninth Circuits.  But the Raniere court nevertheless held otherwise in its 81-page opinion.  Rejecting those authorities, it reasoned that the right to proceed collectively is a substantive right that a party cannot waive.  It further reasoned that waiver of the right to proceed collectively is different in kind from waivers of the right to proceed as a class under Rule 23 because, unlike other federal statutes such as Title VII or the ADA that are governed by Rule 23, “Congress created a unique form of collective actions for minimum-wage and overtime pay claims brought under the FLSA” that “balance the need to incentivize the bringing of often small claims by way of collectivization in order to ensure the statute’s function, while barring actions brought on behalf of employees who had no real involvement in, or real knowledge of, the lawsuit.”  In the court’s view, the right to sue under the FLSA contains an “integral aspect” of “the ability of employees to pool resources in order to pursue a collective action.”  Under that view, an FLSA collective action waiver is, therefore, invalid per se.

The result of the Raniere ruling is that an arbitration clause requiring employees to bring their state law wage-hour claims in arbitration on an individual basis will be enforceable, while (even in the same case where there are both FLSA and state claims) the same arbitration clause will not be enforceable as to FLSA collective actions.  Employers would thus be in the difficult position of having to defend an opt-in collective action in federal court and deciding whether to compel arbitration of state wage-hour claims on an individual basis.  No other court has adopted such a seemingly illogical result.  Collective action waivers requiring FLSA claims to be arbitrated on an individual basis remain enforceable in every circuit that has considered this issue and under the precepts of Concepcion.  Whether the Second Circuit or ultimately the Supreme Court permit Raniere to stand remains to be seen.  In the meantime, employers should bear in mind that Concepcion did not necessarily end collective actions when an arbitration agreement contains a class and collective action waiver.