Looking for Just Desserts

Today's holiday item may be the product of too much eggnog, but we'll report it faithfully:

A new FLSA collective action, Williams v. Long (Civil Action No. 1:07cv3459, filed Dec. 27, 2007), has been filed in US District Court in Maryland. The two plaintiffs and the group they claim to represent insist that their former employer - Sandra Long, who formerly held executive positions in the state's Economic Development and Lottery offices - cheated them out of any compensation while they served as bakers and "frosting technicians" with Ms. Long's current venture, Charm City Cupcakes. The complaint asserts that Ms. Long was trying to "have her cake and eat it too," while maintaining an attitude of "let them eat cake." Will Judge Frederick Motz be amused? Will he put plaintiff's counsel on a sugar-free diet to curb such rhetorical flourishes, or will he swallow the idea that the defendant's alleged recipe for financial success was illegal? We will watch and report, hoping the Food Channel doesn't beat us to the news. And who said legal reporting is a dry and tasteless endeavor?

Click here to read the complaint.

Donning, Doffing, and Dubious Logic

Our holiday gift is this offering from (where else?) California: By this "logic," uniformed officers who are slow dressers may get greater pay. Not only that - once dressed, the authority figures might then decide to stop by the local coffee shop, the dry cleaners, and even the grocery to spread some on-the-clock cheer. When the shift is over, surely an in-uniform visit to the local pub would further the purposes of the compensated time - "command presence" and a deterrent to personal injury. As long as the officer is in the public eye, the Department benefits, wouldn't you say? As you might imagine, there are other decisions which have reached a different view.

Click here to read more.

Class Certification Denied for Sanofi-Aventis Pharmaceutical Sales Reps Suing for FLSA Overtime Violations

A U.S. District Judge for the District of New Jersey denied the request of plaintiff Sanofi-Aventis pharmaceutical sales representatives to certify their unpaid overtime claims at the notice phase of their FLSA case. While the judge indicated that the standard during the notice stage of a FLSA case is "fairly lenient", the judge felt that standard was not met by the plaintiffs who did not show that all sales representatives were "similarly situated" under the overtime wage exemptions of the FLSA. Denials of certification have been fairly rare in recent months.

The judge reiterated that certification was not "automatic" and "substantial allegations", not mere assertions of similarity, were needed to achieve class certification. Job duties differed in the court's opinion as to the representatives depending on what products they sold for Sanofi. At this stage, the denial has two major impacts: (1) the statute of limitation for potential class members continues to run; the statute of limitations would have been tolled by certification; and (2) plaintiffs cannot send notice to putative class members.

The judge further assisted Sanofi by granting its motion to strike the plaintiffs' state law class allegations finding a conflict if the court were to hear both claims because of the different opt-out procedures under New Jersey law and the opt-in procedures of the FLSA. This ruling is obviously in contrast to the recent Hoffman La-Roche decision discussed yesterday. Several other pharmaceutical companies are facing similar FLSA cases at present: AstraZeneca, Pfizer, Johnson & Johnson, Amgen, Eil Lilly, Hoffman La-Roche, GlaxoSmithKline, Bayer, and Boehringer-Ingelheim.

To read the Employment Law 360 article on this rare denial, click here.

UBS Wins Dismissal Of Remaining Wage Claims

From Employment Law360: A federal judge has dismissed the remaining claims in a wage-and-hour suit brought against the brokerage arm of UBS by a former advisor who opted out of a $44 million settlement. In an order issued Wednesday, Judge Maxine M. Chesney of the U.S. District Court for the Northern District of California ruled that the former UBS advisor, David Waisbein, could not seek penalties on behalf of the state for alleged violations of the Private Attorneys General Act. In doing so, Chesney vacated an order she issued this August that dismissed most of the claims against UBS Financial Services Inc., but let Waisbein seek penalties under PAGA to be awarded to the state.

Click here for more information

Court Limits Consent In Poultry Workers' Class Action

From Employment Law360: An appellate court has ruled that the consent poultry workers received to join a collective action regarding Fair Labor Standards Act violations in prior litigation could not be carried over into subsequent suits alleging similar claims. The U.S. Court of Appeals for the Eleventh Circuit ruled on Friday that attorneys who had filed suit against chicken processing plant owners Cagle's Inc. and Equity Group-Georgia Division LLC in 2000 did not receive the appropriate consent to file similar claims against the companies in two other lawsuits filed in 2005.

Click here for more information

Home Depot Assistant Managers May Not Bring Class Action

Hundreds of merchandising assistant store managers working at Home Depot stores
in California may not proceed as a class action with their claims that they were denied overtime pay in violation of state law, the California Court of Appeal rules (In re Home Depot Overtime Cases, Cal. Ct. App., No. E040215, unpublished opinion 11/21/07).

In affirming the Riverside County Superior Court's denial of class certification, the appeals court holds that the lower court did not abuse its discretion in determining that individual questions of fact predominate over common issues, making a class action inappropriate. The appeals court says a class would have included between 1,400 and 2,700 MASMs.

Home Depot has to show, among other things, that the MASMs spend more than half their work time on managerial duties to prove its affirmative defense that they are exempt from overtime pay as executives. The lower court found that circumstances, such as the number of employees and departments supervised by each MASM, vary considerably among stores. (230 DLR A-7, 2007)

Note: must have WestLaw account.