The Supreme Court is set to hear oral argument in October on whether class and collective action waivers are enforceable. While employers await the Supreme Court’s decision, other courts continue to weigh in on the matter.  Just last week, a New York State appellate court in Gold v. New York Life Ins. Co.2017 NY Slip Op 05695 (App. Div. 1st Dep’t, July 18, 2017), found itself aligned with those federal circuit courts of appeal invalidating these waivers.  Given the continuing disagreement among courts across the nation – both federal and state – as to whether the Federal Arbitration Act’s policy favoring arbitration should trump the National Labor Relations Act’s prohibition on contracts that restrict the rights of employees to engage in collective action, the need for clarity from the Supreme Court is more urgent than ever. Employment Matters will of course continue monitoring these important developments, so please check back in for regular updates.

The United States Supreme Court ruled Tuesday that Tyson Foods employees could use representative evidence to establish liability and damages for class certification purposes.  The opinion gives the plaintiffs’ class action bar a second victory in the Court’s current term, albeit a far narrower one than many commentators had feared.  (We covered the first victory here.)  Perhaps, more importantly, the Court sidestepped a seemingly more controversial issue regarding whether a class may include uninjured class members.  That issue will have to be decided another day.  We analyze the Tyson Foods opinion below.

Continue Reading Taking an Evidentiary Approach, the Supreme Court Rules that Employees Can Use Representative Samples to Establish Classwide Liability and Damages, But It Leaves Open Question of Whether Classes Can Include Uninjured Class Members

Is the pick-off strategy to moot class actions still alive in the Southern District of New York?  Possibly.

Continue Reading New York Federal Court Ruling May Breathe New Life into Employment Class Action Pick-off Strategy; Addresses Supreme Court’s Gomez Decision

Last summer the Second Circuit issued an important decision that identified the proper test for determining whether an employer properly classified an individual as an unpaid intern.  The decision was a victory for employers because the nature of the test required courts to utilize a highly-individualized analysis of each intern’s experience, and therefore, it did not necessarily lend itself to class action treatment.  On rehearing, the Second Circuit has now amended this decision to clarify that the test is highly context-specific rather than dependent on the individualized experiences of each intern.

Continue Reading Second Circuit Amends its Unpaid Intern Classification Decision; Refines the Primary Beneficiary Analysis

Last month, we wrote about the Supreme Court’s opinion in Campbell-Ewald Co. v. Gomez, in which the Court ruled that “an unaccepted Rule 68 Offer of Judgment for complete relief does not moot a plaintiff’s individual and class action claims.”  While that decision was welcome news and remains welcome news for employees because it all but eliminated the employer-favored named plaintiff “pick-off” strategy, the Supreme Court did appear to leave open the possibility that employers could still pick off a named plaintiff in other ways: by either actually paying them the amounts allegedly owed, or similarly, by depositing the money with the court to be released to the plaintiff upon dismissal of the action.  Just weeks later however, a New York Federal Court addressed this residual issue – the result: more welcome news for employees.

Continue Reading New York Federal Court Interprets Supreme Court’s Gomez Pick-Off Strategy Opinion Broadly; Declines Employer Request to Deposit Funds with Court to Moot Class Action Claim

Non-disparagement provisions are commonplace in today’s settlement and separation agreements, with employers often seeking the broadest protection against disparagement.  A recent decision from a New York federal court, however, suggests that such provisions may have their limits in connection with wage and hour settlement agreements.  Even a non-disparagement provision that is mutual and agreed upon by all the parties may be struck down if it is so overbroad as to violate the FLSA’s compliance objectives according to the court in Santos v. El Tepeyac Butcher Shop Inc.

Continue Reading New York Federal Court Rejects Mutual Non-disparagement Provision in FLSA Settlement Agreement as Overbroad

A group of female sales representatives alleging sex-based pay discrimination claims against their employer under the federal Equal Pay Act cleared an initial, but significant, hurdle last week when the Southern District of New York granted their motion for conditional certification of a collective action seeking more than $100 million in damages.  The court held the plaintiffs had made the required “modest factual showing” that female sales representatives nationwide who worked for the defendant, Forest Laboratories, Inc., were “similarly situated” and should be permitted to opt-in to the lawsuit.

Continue Reading New York Federal Court Conditionally Certifies $100 Million Pay Discrimination Collective Action Against Pharmaceutical Company

The Second Circuit struck a blow today to individuals pursuing collective/class actions alleging that unpaid interns should be classified as employees.  The Court announced an employer-friendly test that asks who benefits more from the internship – if it’s the individual, then classification as an employee entitled to minimum wage and overtime is not necessary.  The Court also threw out the lower court’s certification decision, finding that its new test required a highly-individualized look at each intern’s experience.  The case is Glatt v. Fox Searchlight Pictures, Inc.  Employers will largely welcome the decision, but we caution against claiming total victory just yet. We explain more fully below.

Continue Reading Unpaid Intern v. Employee Classification Analysis Must Look at Who is Primary Beneficiary of Relationship, Second Circuit Holds

The Supreme Court has agreed to hear two cases during its Fall 2015 term that could further transform the wage and hour class action landscape.  We briefly discuss those two cases below.

Continue Reading Supreme Court to Decide Two Cases Addressing Important Class and Collective Action Issues

In what appears to be a sign of things to come, a federal court in New York recently approved the use of social media to notify potential class members who were more likely to be reached that way rather than by more traditional forms of notice, such as regular mail.  The order permitting social media use comes on the heels of a similar order by a federal court in California.

Continue Reading New York Federal Court “Likes” the Use of Social Media to Notify Class Members in Wage and Hour Action