BLOGS: Fair Labor Standards Act Law

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Friday, October 14, 2011, 4:36 PM

Ex-Hostess Tackles Colts In FLSA Minimum Wage Suit

An ex-hostess launched a putative collective action Wednesday accusing the Indianapolis Colts of running afoul of the Fair Labor Standards Act by failing to pay hostesses, who attend to people in the press box area of the Colts' stadium, the federally required minimum wage.

Read the case.


More On Papa John's

Over the employer’s objections that the practice constituted enabling of solicitation with court approval, Judge Audrey Fleissig allowed use of prepaid return envelopes in connection with notice of the ability to opt in to an FLSA collective action against Papa John’s in the Eastern District of Missouri.

Click to read the order.

See our previous post (10/7/11).


Friday, October 7, 2011, 3:57 PM

Papa John's Drivers Assail Class Notification Roadblock

A group of Papa John’s Pizza delivery drivers seeking to expand their class in a wage-and-hour suit asked a federal judge on Wednesday to reconsider a ruling that barred attorneys from using prepaid return envelopes in notifying potential class members of the suit.

Read more from Employment Law360...


Burger King Managers Denied Class Cert. In OT Fight

A Florida federal judge on Thursday shot down a group of Burger King Corp. franchise managers' bid for class certification in their wage and hour suit claiming the fast-food giant failed to pay them overtime, ruling the plaintiffs' managerial duties were too varied.

Click to read more from Employment Law360...


Thursday, October 6, 2011, 3:41 PM

DOL Set to Share Employee Misclassification Information with the IRS and States

In what appears to be another example of cracking down on the improper use of independent contractors, the U.S. Department of Labor (“DOL”) recently announced it is entering into agreements with the IRS, as well as some state agencies (including Illinois state agencies), to share information regarding employers who have improperly classified employees. The DOL maintains that these arrangements are necessary to share information and coordinate law enforcement with the participants to end the practice of misclassifying employees. However, it is clear that this collaboration has as much to do with enhancing the inflow of tax revenues as it does with protecting employees.

What this practically means for businesses is that if the DOL determines that an independent contractor is misclassified, it can share that determination and evidence with, for example, the Illinois Department of Employment Security or other state agencies, which could very well lead to additional investigations, fines, fees and liability upon the business beyond those by IDOL. In light of this, every company with a business model based, in whole or in part, upon the use of independent contractors should prepare itself for this new enforcement activity and immediately consult with an employment attorney to perform an audit of those workers.

More from Lexology


Wednesday, October 5, 2011, 3:46 PM

Skycaps Can Coordinate Cases Over Airlines' Fees

A Massachusetts federal judge agreed to allow skycaps in a proposed class action against US Airways Inc. over its bag-checking fee and plaintiffs in a similar suit against United Airlines Inc. to coordinate their cases with a class action against American Airlines Inc., the plaintiffs’ attorney said Wednesday.

More from Employment Law360...


Tuesday, October 4, 2011, 4:18 PM

Judge Rules Ohio-based Cascom Employees Misclassified as Independent Contractors

Judge rules Ohio-based Cascom employees misclassified as independent contractors, denied overtime pay in suit brought by US Labor Department.

Read more from DOL web site...


Maybe Not So Ho Hum at the Supreme Court: FLSA and Wal-Mart v. Dukes

"The use of Wal-Mart Stores, Inc. v. Dukes in an FLSA case is a key link for those who are advocating for greater control by the courts of FLSA collective actions. Unfortunately, as the 9th Circuit opinion shows, while the case is an FLSA case it is also a Rule 23 case on the state law claims. So, the linkage is not as definitive as one would like."

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Article from Employment Law360...

Can You Hear Me Now?

In order to obtain legal protection against retaliation when you complain to your employer, be certain your complaint is specific enough to allow the employer to investigate and take appropriate action. That’s the lesson of Shadduck v. United Parcel Service (attached). Even though the Supreme Court has allowed at least a degree of FLSA protection to internal complaints (see our earlier post (“Beware of Verbal Discrimination Complaints,” August 10, 2011)), communication skills are still important: it’s not enough that you know what you’re talking about if no one else does. And for employers, the cautions are still in play: even a vague complaint may be deemed sufficient, and you shouldn’t bank on finding a judge who agrees with your professed lack of understanding. Finding out the answer from a federal court isn’t a good business strategy, and finding out from a jury is even less so. After all, Mark Twain is claimed to have said the American jury system is the world’s best way of resolving disputes other than rolling dice.

Read the case...

A Touch of Class?

Yesterday the Supreme Court vacated a Ninth Circuit decision, Chinese Daily News, Inc. v. Wang, dealing with the formidable procedural problems created when an FLSA collective action - in which no one can participate as a plaintiff or "class" member without affirmatively opting in,in writing - with claims under state law which also seek class treatment. The state claims (or, occasionally, ones advanced under other federal laws without the special FLSA procedural requirements)would be governed by traditional class action standards, which involve the certification of a class and the exclusion of individuals who are "similarly situated" only if they opt out. Some courts see no problem with this apparent inconsistency, while others attempt to reach a case-by-case balance. One such examination is found in last week's D.C. Circuit opinion in Shahriar v. Smith & Wollensky Restaurant Group, and another in the January 18 Seventh Circuit opinion in Ervin v. OS Restaurant Services (where the court said that the employer's attorneys had been unable to identify any "concrete examples of confusion" produced by the different standards).

The Wang case resulted in a $7.7 million judgment to employees of the Chinese-language World Journal arising out of allegations that the newspaper required off-the-clock work and denied employees meal breaks and itemizations of their pay. A jury awarded $2.5 million, and after that the judgment ballooned due to liquidated damages, penalties and interest. In the process, the Journal secured opt-out authorizations from nearly 3/4 of the group (as well as some whom weren't within the defined class at all). Much of this activity was attributed to employer intimidation, the appeals court found.

The Supreme Court's order, issued on the first day of the new term, sent the case back to the Ninth Circuit for reconsideration inlight of Wal-Mart v. Dukes, the decision earlier this year which invalidated nationwide class action treatment of gender discrimination claims agaist the nation's largest retailer. The Ninth Circuit - which had also decided the Dukes case - must now re-evaluate its analysis to see if a different result is in order. In the meantime, expect more litigation to clarify this important procedural problem, and more uncertainty in the interim.
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