Employers, even with the most robust and well-intentioned human resources departments, can still face the dreaded misclassification lawsuit for their salaried employers. In many cases, exempt employees are properly classified as executive or administrative employees. A misclassification lawsuit, however, is difficult to dismiss early because plaintiffs are afforded great latitude in crafting factual disputes that … Continue Reading
Partner Mark Konkel was mentioned as Saks Fifth Avenue’s defense counsel in a newly-filed wage-and-hour class action in the Law360 article “Saks Hit With NY Wage Class Action Over Sales Commissions.” The high-end retailer has been accused of violating New York state labor law at its flagship department store in Manhattan. Mr. Konkel and a … Continue Reading
In a ruling that widens the divide between federal appellate courts, the Ninth Circuit sided today with the Seventh Circuit and the National Labor Relations Board (“NLRB”) in holding that the class action waiver provision of a company’s arbitration agreement with employees violates the National Labor Relations Act (“NLRA”). Prior to this decision, the Seventh … Continue Reading
Ambiguities in employee arbitration agreements may force employers to litigate putative class action claims in arbitration. The California Supreme Court delivered this cautionary message by its recent holding in Sandquist v. Lebo Automotive, Inc. In Sandquist, the plaintiff, an African-American male, filed a discrimination class action on behalf of “current and former employees of color” … Continue Reading
In today’s era of social media and the internet, many of us have an insatiable desire for information and a knee jerk reaction when attacked: What dirt can we find out about our adversary? This often happens in litigation – someone sues you or your company, and your first reaction is to jump on Google … Continue Reading
Wal-Mart may have felt the first aftershock of the Supreme Court’s March 2016 opinion in Tyson Foods, Inc. v. Bouaphakeo, which undercut overbroad interpretations of its landmark 2011 Wal-Mart v. Dukes decision and found that representative sampling of absent class members is not a per se improper method of establishing class-wide liability or damages. On … Continue Reading
In a highly anticipated decision, the Supreme Court last week affirmed a $5.8 million judgment against Tyson Foods and held that damages in a class action can be established by “statistical sampling” – a phrase that may now haunt many employers for years to come. The Plaintiffs in Tyson Foods Inc. v. Bouaphakeo et al. … Continue Reading
In a closely-watched decision involving a challenge to the business model used by ride-hailing company Uber Technologies, Inc., a California federal judge agreed to certify a class of California drivers who claim to have been misclassified as independent contractors instead of employees. On September 1, 2015, in O’Connor, et al. v. Uber Technologies Inc., et … Continue Reading
Earlier this month Sirius XM Radio Inc. settled a wage & hour class action with a class of 1,852 unpaid interns that claimed the company violated federal and state labor laws by failing to compensate them for the work they performed during their internships. The reported settlement amount – $1.3 million – demonstrates that the … Continue Reading
Many of us spent summers working as interns, getting access to the industry of our choice, making contacts, learning – and yes running errands and filing and stuffing envelopes and doing other “grunt” work. Most young people value this experience, not for the money, but for the exposure, the contacts and the experience. The world … Continue Reading
In the appeal of a lawsuit brought by the EEOC over a Texas employer’s use of background checks in the hiring process, Equal Employment Opportunity Commission v. Freeman, the Fourth Circuit Court of Appeals slammed the EEOC’s sloppy investigative work and dismissed the suit. The underlying case arose from a racial discrimination charge brought by … Continue Reading
Following on the increase in wage class actions, this week brings us a hefty settlement for shoe retailer, Payless Shoesource Inc. Last March, former Payless store managers filed suit in Connecticut federal court, accusing the company of misclassifying them as exempt and failing to pay them overtime. The original case was then combined with a … Continue Reading
The employee notice requirements of the Fair Credit Reporting Act (“FCRA”) at times seem like form over substance – but recent litigation underscores that, well, filling out the forms really does matter. The craft supply retailer Michaels Stores, Inc. was sued with a proposed class action in January alleging that the company’s background check notices to prospective … Continue Reading
