Certified Ortho-McNeil FLSA Class Expected To Swell

From Employment Law360: Thousands of Ortho-McNeil Inc. sales representatives will be asked this week to join a newly certified nationwide class action against the drug giant for tens of millions of dollars in unpaid overtime wages.

The case is believed to be one of the first of a dozen federal wage-and-hour actions brought by pharmaceutical sales reps to be granted class certification this year, with the status of others against such companies as Pfizer, AstraZeneca and Johnson & Johnson still to be decided.

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Appeals Court Asks Judge to Reconsider $150,000 Award of Attorneys' Fees on Lost Tips of $1.26

Although it is common to have "prevailing party" attorneys' fees set at an amount proportional to the damages awarded to the plaintiff, a recent Massachusetts decision demonstrates that this is not an inflexible rule. How about a fee 120,000 times the plaintiff's recovery? A state appeals court ruling questions whether this is a bit inordinate, as the discussion below shows.

A recent decision demonstrates that claims under the Massachusetts Wage Act can prove costly to employers even in victory. In Killeen v. Westban Hotel Venture, the plaintiff, a hotel banquet server, alleged that the hotel violated the state tip pooling statute by giving a portion of gratuities to “banquet captains.” Although the trial court found that banquet captains did in fact provide service and were entitled to share in gratuities, it concluded that the hotel’s practice of allowing the banquet captains to collect a full share of the service charges violated the “proportionality” provision of the tip pooling statute. The plaintiff claimed damages of up to $127,000, but, after a trial, only proved damages in the amount of $1.26. The trial judge mistakenly believed that the statute required this amount to be trebled and entered judgment in the amount of $3.78. Despite that the plaintiff had only established actual damages of a little more than a dollar, the trial court also awarded her attorneys’ fees and costs in excess of $150,000.

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DOL Settlement No Bar to FLSA Claims Outside Period Covered by Pact

A Nevada cable company employee who received overtime compensation from a Labor
Department-supervised settlement was not barred from seeking damages for
periods not covered by the agreement, the Ninth Circuit rules in reversing a
trial court's decision (Dent v. Cox Commc'n Las Vegas Inc., 9th Cir., No.
05-15455, 9/10/07).

Siding with David Dent in his attempt to sue Cox Communications Inc. and its
subcontractor MC Communications Inc. for unpaid overtime under the Fair Labor
Standards Act and Nevada law, the Ninth Circuit says that a Labor Department
WH-58 agreement was limited to the time covered by the settlement and did not
bar him from suing for violations occurring before the time period stated on
the agreement.

But what about the statute of limitations? Dent's claims may be untimely....

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9/11 Clean-Up Workers Sue For Overtime

From Employment Law 360: Nine New Yorkers who helped clean up the mess left by Sept. 11, 2001 hit their employers with an overtime class action on Wednesday, saying they worked long hours in unsafe conditions but weren't paid the proper premium rates.Instead, they said with their suit, filed Wednesday in the Supreme Court of the State of New York, they were paid per shift—usually $60 for an eight-hour shift, or $7.50 an hour—without regard to the overtime premiums required by the New York Labor Law.

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Court Sides With Tyson Plant in FLSA Suit

From Employment Law360: In a precedential ruling hailed as a victory for potentially tens of thousands of U.S. factory workers, an appeals court has held that a trial judge presiding over a wage dispute blundered by limiting compensable work to strenuous activity. The U.S. Court of Appeals for the Third Circuit ruled that Pennsylvania District Court Judge Robert Kelly misdirected a jury when he instructed it to consider whether donning and doffing work clothes was "cumbersome" enough to warrant pay. The circuit judges, who heard arguments in July and published their opinion Wednesday, sided with Tyson Foods Inc.'s poultry plant workers, ruling the activity was indispensable and thereby constituted work meriting compensation.

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Federal District Courts Issue Favorable Decision Regarding Exempt Status of Financial Advisors

Financial services employers waited patiently last year for the United States Department of Labor (“DOL”) to issue several opinion letters regarding hotly litigated exemptions to overtime requirements under the Fair Labor Standards Act (“FLSA”).

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State Wage Class Claims Against Skywest Airlines Too Individualized

SkyWest Airlines agents in California have their state wage and meal break
class action rejected after a federal court rules the claims of 2,651 agents
are too individualized to be resolved on a collective basis (Blackwell v.
Skywest Airlines Inc., S.D. Cal., No. 06-307, 8/30/07).

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Software Engineer FLSA-Exempt; Work Required Analysis and Judgement

A software engineer working for a health care information firm was not entitled
to overtime pay under the Fair Labor Standards Act, even if her work was
limited to identifying and resolving software defects, a federal court in
Missouri rules (Young v. Cerner Corp., W.D. Mo., No. 06-0321-CV-W-NKL,
8/28/07).

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Wage and Hour Lawsuits Up Again - FLSA Handbook

A good article in the FLSA Handbook that just came out, with good stats and a summary of litigation trends (including MDL and collective actions).

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Mortgage Company Retail Exemption Appeal Turned Down

From Employment Law360: A federal appeals court has rejected Ace Mortgage Funding Inc.'s argument that it doesn't have to comply with the overtime pay requirements of the Fair Labor Standards Act because it is a retail or service establishment, marking the latest development in a series of attempts by financial services companies to convince judges that the FLSA doesn't apply to mortgage brokers.

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Fifth Circuit Rules Firm's Arbitration Program Not Enforceable

Two former employees of a ceiling fan installation firm in Houston do not have
to arbitrate their Fair Labor Standards Act overtime pay claims because the
firm did not properly implement its mandatory arbitration program, the Fifth
Circuit rules (Moran v. Ceiling Fans Direct Inc., 5th Cir., No. 06-20810,
unpublished opinion 9/6/07).

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