Class Actions

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Class action arbitration is such a departure from ordinary, bilateral arbitration of individual disputes that courts may compel class action arbitration only where the parties expressly declare their intention to be bound by such actions in their arbitration agreement, the U.S. Supreme Court has ruled in a 5-4 decision. Lamps Plus, Inc. v. Varela,…

In a natural extension of the Supreme Court’s recent conclusion that the NLRA does not preclude the use of class or collective action waivers in employment-related arbitration agreements, the Sixth Circuit Court of Appeals has confirmed that such waivers are likewise permitted under the FLSA. Gaffers v. Kelly Services, 2018 U.S. App. LEXIS 22613…

While this blog’s focus generally is on the substantive provisions of the Fair Labor Standards Act and state wage-and-hour laws, due to the prevalence of class action litigation, it is sometimes necessary to address procedural issues of importance to wage and hour litigation, such as arbitration agreements. Another important procedural facet of many wage-and-hour litigations…

The issue of the enforceability of an employee’s agreement to arbitrate disputes with his or her employer on solely an individual basis and related waiver of the right to proceed in a representative capacity (i.e., class or collective action basis) continues to wend its way through to the higher courts. Ultimately, this issue…

Employers who find themselves confronted with a putative collective action lawsuit under the FLSA typically take immediate steps to limit exposure, both within and outside the litigation. One procedural tool employers seek to avail themselves of is the Offer of Judgment, authorized by Federal Rule of Civil Procedure 68. Using this mechanism, an employer seeks to…

Recently, we discussed the standard applicable to collective action certification of FLSA claims at the so-called “second stage”, which occurs after factual discovery. This is a more stringent standard than that applied to cases at the initial “conditional certification” stage, where courts apply a standard that varies from circuit to circuit, but is typically lenient. However…

While this space frequently discusses decisions adjudicating the merits of FLSA plaintiffs’ “off-the-clock” claims, allegations that employees were not compensated for all hours worked, FLSA collective action litigation often does not reach this merits stage of the proceeding. Frequently, courts first review plaintiffs’ claims in the context of determining whether FLSA plaintiffs are “similarly situated&rdquo…

While courts continue to issue varied rulings regarding the appropriateness of collective action certification in FLSA litigations, employers continue to attempt to limit exposure to such broad allegations through several mechanisms. One of these strategies is inclusion of class/collective waiver provisions in arbitration, employment or separation agreements. Such provisions bar initiation and participation in class or collective…

FLSA lawsuits seeking unpaid minimum or overtime wages typically are brought as “collective actions,” pursuant to 29 U.S.C. § 216(b). State law claims typically are brought – often in the same lawsuit – as class actions under Federal Rule of Civil Procedure 23. Despite the large number of wage and hour class and collective actions brought in…

As the surge of wage and hour collective actions continues, one strategy utilized by employers to avoid such multi-plaintiff litigations is the use of arbitration agreements with class/collective action waivers.  In essence, such provisions mandate that an employee arbitrate any wage and hour and other (subject to certain limitations) disputes on an individual basis.   Arbitration…