Proskauer on Class and Collective Actions

Category Archives: FLSA

Subscribe to FLSA RSS Feed

Sixth Circuit Confirms Employees Must Report Time Worked

In White v. Baptist Memorial Health Care Corp. (PDF), the Sixth Circuit held yesterday that summary judgment was properly granted for an employer against an employee’s meal break claim, where the employee had failed to record her time worked in the employer’s timekeeping system.  The hospital had provided an “exception log” mechanism that allowed employees … Continue Reading

Supreme Court Finds Pharmaceutical Sales Representatives Exempt From Overtime; Department of Labor’s Interpretation of FLSA Regulations Not Entitled To Any Deference

In a much-anticipated decision in Christopher v. SmithKline Beecham Corp., on June 18, 2012, the U.S. Supreme Court held 5-4 that pharmaceutical sales representatives are exempt from overtime under the Fair Labor Standard Act’s outside sales exemption because they “make sales” under the most reasonable interpretation of the law. In its holding, the Court unanimously … Continue Reading

Seventh Circuit Holds Pharmaceutical Sales Reps Administratively Exempt – Broadly Interprets Discretion And Independent Judgment

Applying a broad interpretation to the Administrative exemption under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 213(a)(1), the United States Court of Appeals for the Seventh Circuit held, Tuesday, that pharmaceutical sales representatives (“PSRs”) are exempt from overtime.  In Schaefer-LaRose v. Eli Lilly & Co., Nos. 10-39855, 11-1980, 11-2131, 2012 U.S. App. LEXIS … Continue Reading

FLSA Consent-To-Join: Will Any Old Thing Do?

The FLSA provides that “[n]o employee shall be a party plaintiff” to a collective action “unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”  29 U.S.C. § 216(b).  The consensus among courts has been that this provision requires … Continue Reading

Third Circuit Signals End To “Hybrid” Class Action Debate

In February 2011, we previously posted about two decisions from Hon. John E. Jones III, of the Middle District of Pennsylvania, who ruled that FLSA collective actions are inherently incompatible with state law wage and hour claims when brought in the same action – i.e., so-called dual-filed or “hybrid” class actions. [Insert Link to February … Continue Reading

Decapitating Class Actions

One potential early approach to a class action is to “decapitate” it — to knock out the claims of the class representative(s), often by finding some deficiency in their individual claim that supports a motion to dismiss or for summary judgment.  Another approach, though, is to settle with the named plaintiffs.  That buys no peace … Continue Reading

Recent Cases Show Key Role Early Trial Plans Play in FLSA Class Actions

Federal courts across the country are increasingly recognizing the impracticalities and fairness/due process concerns that preclude managing wage and hour class trials, especially where plaintiffs’ trial plan proposes “representative evidence” to prove class claims. The key take-away for employers is to require plaintiffs to produce a trial plan early. The sooner the court reviews plaintiffs’ … Continue Reading

Class Arbitration Waivers: More Uncertainty

Continuing on our recent theme of conflicting rules on class issues, Judge Kimba Wood of the Southern District of New York ruled March 3 (PDF) that Ernst & Young could not enforce a provision in its employment contracts with its accountants that waived class claims and required claims against E&Y, including overtime claims, to be … Continue Reading

Seventh Circuit Says Hybrid Wage Cases Are OK

Class action defense counsel, at least, have argued for a long time that there is a basic incompatibility between collective action claims under the FLSA, which require individual plaintiffs to opt in to the litigation, and wage claims brought under state law, which generally are opt -out cases — meaning that everyone in the job classification … Continue Reading

More on Pleading Standards in Collective Actions

Since the Supreme Court’s decisions in Iqbal and Twombly, which seemed to require greater “heft” in pleadings than the more liberal standard that went before, class action defense lawyers (and non-class action defenders, for that matter) have been testing the value of those decisions, with inconsistent results.  Some courts have imposed little more burden on … Continue Reading

Hours bonuses don’t undermine FLSA exemptions

The Fair Labor Standards Act (FLSA) requires that employers pay exempt employees on a salary basis, generally thought to mean a fixed amount regardless of hours worked.  But many employers have either considered or implemented programs that pay bonuses to exempt employees who work extraordinary hours (please don’t call it “overtime”!).  Some cautious lawyers worry … Continue Reading