August 28, 2017
In Moon et al v. Breathless, Inc., the Third Circuit reviewed the dismissal of a class and collective action under the Fair Labor Standards Act, the New Jersey Wage and Hour Law and the New Jersey Wage Payment Law. The District Court for the District of New Jersey had dismissed the named plaintiff’s claims based on an arbitration clause in the written agreement between the her and Breathless, the club where she worked as a dancer.
In her lawsuit, the plaintiff alleged that she and other dancers were misclassified as independent contractors, and that Breathless unlawfully failed to pay them minimum wages and overtime pay.
May 8, 2013
Michael Kun, co-founder of this blog and Member of Epstein Becker Green, was recently quoted in Inside Counsel about the impact of the U.S. Supreme Court’s Wal-Mart v. Dukes decision upon wage-hour class actions.
The article, “Citing Dukes, Court Overturns Class Certification in Wage and Hour Dispute,” focuses on the Ninth Circuit’s recent Wang v. Chinese Daily News decision, about which Michael has previously written in this blog.
April 22, 2013
By Michael Kun
“Hybrid” wage-hour class actions are by no means a new concept.
In a “hybrid” class action, the named plaintiff files suit seeking to represent classes under both the federal Fair Labor Standards Act (“FLSA”) and state wage-hour laws. As the potential recovery and limitations periods for these claims are often very different, so, too, are the mechanisms used for each.
In FLSA claims, where classes can be “conditionally certified” if a plaintiff satisfies a relatively low burden of establishing that class members are “similarly situated” – a phrase nowhere defined in the statute – only those persons who affirmatively “opt in” to the lawsuit become class members. In state wage-hour claims, governed by Federal Rule 23 (or a state law equivalent), a plaintiff generally must satisfy a higher standard – establishing numerosity, commonality, typicality, adequacy and superiority – and, if a class is certified, only those persons who affirmatively “opt out” are removed from the class.
February 17, 2012
By Michael Kun and Aaron Olsen
Plaintiffs seeking to bring state law wage-hour class actions against employers in the trucking industry have run into a significant road block in California. For the second time in a year, a United States District Court has held that claims based on California’s meal and rest period laws are preempted by federal law.
In Esquivel et al. v. Performance Food Group Inc., the plaintiffs claimed the defendant scheduled their delivery routes such that the plaintiffs were unable to take duty-free meal periods. The defendant argued that the Federal Aviation Administration Authorization Act (“FAAA”) preempted California’s meal and rest period laws. Judge Nguyen of the U.S. District Court for the Central District of California agreed with the defendant and dismissed the plaintiffs’ complaint with prejudice. This decision comes only months after the Southern District of California’s October 2011 ruling in Dilts v. Penske Logistics, LLC, also holding that California’s meal and rest period laws are within the preemptive scope of the FAAAA. Both courts found that the length and timing of meal and rest periods are “directly and significantly related to such things as the frequency and scheduling of transportation” such that requiring off-duty meal and rest periods at specific times would interfere with competitive market forces within the industry.
March 28, 2011
By Michael Kun
Employers who do business in California are already well aware of the wage-hour class actions that have besieged employers in virtually every industry. Class claims for misclassification of employees as exempt employees or independent contractors first began to be filed more than a decade ago, and continue to be filed on a daily basis. Claims for alleged work off-the-clock and missed meal and rest periods by non-exempt employees generally began later, but continue to be filed at an alarming rate.
December 14, 2010
by Michael Kun and Doug Weiner
It is no secret that employers have been beseiged by wage-hour litigation, including wage-hour class actions and collective actions. These lawsuits have hit the hospitality industry as hard as any other industry, perhaps harder.
It is also no secret that the persons who benefit most from these actions are often plaintiffs’ counsel, who frequently receive one-third or more of any recovery.