Tag Archives: Litigation

Fifth Circuit Grants Government Request for Additional Time to State Position on Overtime Rule

Before the election the Department of Labor asked the Fifth Circuit Court of Appeals to expedite its appeal regarding the validity of the DOL’s Final Rule, which increased the salary level for the white collar exemptions.  Earlier this week, however, following the inauguration of President Trump, the Department of Labor made the opposite request, asking … Continue Reading

DOL Requests Additional Time to “Consider Issues” Before Filing Reply In Support of Salary Basis Rule

Earlier today, the Department of Labor filed an unopposed motion to extend the deadline for its next submission in support of its appeal of the salary basis rule injunction.  The motion for extension requested until March 2, 2017 to submit the Department’s reply brief to the Fifth Circuit, and expressly stated that the extra time … Continue Reading

Fifth Circuit Reiterates Appropriate Calculation of Damages For Employees Misclassified as Exempt

In a decision issued on August 16, 2013, the Court of Appeals for the Fifth Circuit, building on its now-venerable ruling in Blackmon v. Brookshire Grocery Co., 835 F.2d 1135 (5th Cir. 1988), reversed a trial court ruling that refused to apply the “half time” measure of damages in an FLSA misclassification case. Ransom v. M. … Continue Reading

More and More Interns Seeking Allegedly Unpaid Wages

Presumably buoyed by the district court ruling in Glatt v. Fox Searchlight Pictures Inc., 2013 U.S. Dist. LEXIS 82079 (S.D.N.Y. June 11, 2013), a number of copy-cat lawsuits have been filed by former entertainment industry interns in recent weeks in the Southern District of New York’s Manhattan courthouse seeking unpaid wages. Salaam, et al. v. Bad … Continue Reading

Citing Supreme Court’s AmEx Decision, Second Circuit Upholds FLSA Collective Action Waivers

In an eagerly anticipated decision, last Friday the United States Court of Appeals for the Second Circuit issued its decision in Sutherland v. Ernst & Young. Applying the Supreme Court’s recent holding in American Express v. Italian Colors, the Court held that plaintiff Sutherland is obligated to pursue her claims for wage claims against Ernst … Continue Reading

Second Circuit Finds Gristede’s Owner to Be Individually Liable “Employer” Under FLSA

Reviewing a district court decision issued two years ago, the United States Court of Appeals for the Second Circuit has affirmed a ruling finding John Catsimatidis, the CEO and owner of New York-area grocery chain Gristede’s (and a New York Mayoral Candidate), individually liable for wages under the FLSA based on the “economic realities” of … Continue Reading

Oxygen Network and Parent NBC Succeed in Compelling Arbitration of Class Wage Claims

With the policy behind arbitration embodied in the Federal Arbitration Act (FAA) reinforced by a series of Supreme Court decisions (Stolt-Nielsen (2010); Concepcion (2011) and Greenwood (2012)), employers continue to implement mandatory arbitration programs under the FAA. Among the many reasons to consider implementation of such a program is the utility of a class/collective action waiver … Continue Reading

5-4 Supreme Court Affirms Dismissal of Collective Action Based on Employer’s Settlement Offer

Issuing its second sharply divided procedural opinion in as many months with ramifications for wage-and-hour practitioners, the Supreme Court yesterday ruled that a Pennsylvania nursing facility’s “offer of judgment,” which would have provided full relief to the sole putative collective action representative, effectively “mooted” her case.  Accordingly, no collective action could proceed even though the … Continue Reading

New York State Court Issues Injunction Preventing Eviction of Tenant-Employee With Pending Asserted Wage and Hour Claims

Injunctive relief is infrequently sought in wage-and-hour litigation, which typically focuses on whether an employer properly paid wages for time periods which already transpired, as well as for any period after the filing of an action where the challenged practice means unchanged. However, injunctive relief can be available in FLSA cases. In a prime example, a … Continue Reading

Court Holds Minority Owner of Construction Business Not Employer Under FLSA

FLSA litigation against medium-sized businesses continues, and a common tactic  in such cases is to assert that one or more owners or managers of the business is the plaintiff’s "employer" under the statute, and thus individually liable for the allegedly unpaid minimum wage and/or overtime. See generally Herman v. RSR Sec. Servs., Ltd., 172 F.3d 132 … Continue Reading

Federal Court in Arizona Also Questions Need for Supervision of FLSA Settlement

As we recently discussed, the Court of Appeals for the Fifth Circuit called into question the FLSA’s long-standing judicial supervision requirement, creating a split of authority between its decision rejecting the supervision requirement where other indicia of fairness are present, and the Eleventh Circuit’s 1982 decision relied on by courts which requires supervision (Lynn’s Food … Continue Reading

New York Judge Rejects Creative Tolling Argument Following Evidentiary Hearing

Employment practitioners and HR professionals are aware that the limitations period under the Fair Labor Standards Act is two years, extended to three years in the case of “willful” violations under 29 U.S.C. § 255. Further, an individual’s claim under the FLSA generally is measured from the date of the filing of his or her complaint … Continue Reading

Contravening Eleventh Circuit, Fifth Circuit Finds No “Supervision” of FLSA Settlements Required Where Other Indicia of Fairness Are Present

For years, the conventional wisdom among FLSA practitioners has been that waiver of FLSA claims requires “supervision,” either from a court or the federal Department of Labor. This supervision requirement dates back to the seminal appellate case on the subject, Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982). Since Lynn’s Food was … Continue Reading

Two New York Courts Rule FLSA Defendants Can Proceed with Counterclaims

Suing one’s employees—current or former—is fraught with expense, risk and the very real possibility of obtaining no relief whatsoever. For these reasons, employers typically do not contemplate or if contemplated decide not to sue employees (outside of the context of restrictive covenants and trade secrets) unless forced into a customary corner: as the defendant in a … Continue Reading
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