Category Archives FLSA

Last week, the Supreme Court issued its opinion in Tyson Foods v. Bouaphakeo, No. 14-1146 (March 22, 2016), a closely watched case out of the 8th Circuit that presented two meaty issues relevant to class action practitioners: 1) whether a plaintiff can use statistical sampling to establish class-wide liability, aka "Trial-by-Formula"; and 2) whether a certified class can include uninjured claimants.  In its opinion affirming both class certification and the trial verdict, the Court did not make any broad pronouncements on the use of statistical evidence in classwide proceedings, but instead took a more measured approach on when such evidence may be used.  Our thoughts on the opinion are below. On the use of statistical evidence, Justice Kennedy, writing for the majority observed that "[a] categorical exclusion of that sort, however, would make little sense. A representative or statistical sample, like all evidence, is a means to establish or defend against liability."  Instead, whether and when…

Following its grant of certiorari in Spokeo v. Robbins earlier this year, the United States Supreme Court has granted cert in yet another class action for the upcoming Fall Term that may have wide-ranging implications in the class action arena, particularly the wage-and-hour litigation. In Tyson Foods, Inc. v. Bouaphakeo, the Eighth Circuit recently affirmed the district court's decision to certify a class of hourly employees at a Tyson meat-processing facility in Iowa.  The plaintiffs alleged Tyson failed to provide FLSA overtime compensation for donning and doffing (putting on and taking off) protective gear before their shift formally started.  Although Tyson argued that there were significant factual differences between the workers in the putative class, the district court certified the case based on the plaintiffs' proposed statistical analysis calculating the “average” time spent donning and doffing the protective equipment, notwithstanding any employee’s actual individualized and personal circumstances.  The case was tried, ultimately resulting in a…

We have written a few posts about the challenges inherent in obtaining judicial approval of proposed class settlements here at the Missouri and Kansas Class Action Law Blog, and this latest order issued by Judge Kays denying a proposed hybrid wage-and-hour settlement outlines many of those concerns that counsel should be mindful of when negotiating and finalizing a proposed class settlement that will pass judicial scrutiny. (HT to our former colleague Eric Dirks who tipped us off about this order earlier this week - look for a guest post from him in the coming weeks). In Stewart v. USA Tank Sales and Erection Co., No. 12-05136-CV-SW-DGK, 2014 WL 836212 (W.D. Mo. March 4, 2014), the plaintiffs brought a seemingly straight-forward wage-and-hour claim, alleging that their employer failed to pay them overtime; the wrinkle being that it was a "hybrid" class where plaintiffs bring a claim under both the federal Fair Labor Standards Act…

For those who don't opt in until the class is conditionally certified, that's who.  In Greenstein v. Meredith Corp., 2013 WL 4028732 (D. Kan., Aug. 7, 2013), class counsel asked the District Court to equitably toll the limitations period for the eleven-month period from the time plaintiffs' motion for conditional certification was filed, and the time it was granted. Normally in FLSA cases the limitations period is not tolled until the class member opts into the conditionally certified class. Plaintiff argued that the long delay in resolving conditional certification justified equitable tolling. Judge Rogers disagreed, explaining that although the Tenth Circuit has not addressed the issue of equitable tolling in the context of an FLSA class, it usually applies that doctrine restrictively only where the defendant has actively misled the plaintiff respecting the cause of action, or in other extraordinary circumstances. Judge Rogers also determined that the factors applied by…

This is a follow-up from our earlier post discussing the Supreme Court's decision to hear the appeal in Genesis HealthCare Corp. v. Symczyk and our prediction that the Court's decision could impact the viability of future FLSA litigation.  Well, as it turns out, we could not have been more wrong.  In an extremely narrow 5-4 decision, the Court refused to decide whether the unaccepted Rule 68 offer of judgment actually rendered Ms. Symcyzk's individual FLSA claim moot, instead assuming that the claim was moot because she conceded the issue in the courts below and subsequently waived the argument on appeal.  No. 11-1059, ___ S. Ct. ___, 2013 WL 1567370 (April 16, 2013). Because the Court "assumed, without deciding" that the plaintiff's individual claim was moot, the larger question left to resolve was whether the lawsuit could remain viable based on the FLSA collective action allegations. The Court held that it did not because "the…

The recent order in Burkeen v. New Madrid Ambulance Dist., 2013 WL 880079 (E.D. Mo., March 8, 2013) is relatively unremarkable (the defendant didn't really contest preliminary certification), but potentially useful in how it addresses some mechanical aspects of FLSA notice. In this putative FLSA action brought on behalf of EMTs seeking overtime pay, the defendant challenged the scope of employee information it was required to hand over to class counsel, the facilitation of class notice, and the contents of class notice. Judge Limbaugh ruled that: The defendant must hand over putative class members' names, addresses, phone numbers and e mail addresses (useful for contacting employees who have moved), and dates of employment, but not their locations of employment; The defendant must post class notice in break rooms, but need not include class notice in pay stubs (because other forms of contact were adequate); Class notice need not include a…

In Hull v. Viega, Inc., 2013 WL 759376 (D. Kan., Feb. 27, 2013), Judge Robinson found herself addressing more questions than she was able to answer. One question she did answer was the timeliness of the Defendants' Motion to Strike the class allegations. This putative class action asserted claims on behalf of owners of homes and buildings with Defendants' brass fittings, and those who had paid for repairs or damages caused by these allegedly defective brass fittings, seeking damages under various states' deceptive trade practices acts, as well as under various common law claims. Defendants raised twenty questions in their Motion to Dismiss, which the Court described as a "scorched earth approach" that was both "multi-layered" and "dismissive" in that it required the Court to independently research various nuances of Nevada law. Defendants' Reply also incorporated rulings and raised new issues from a recent order in parallel action pending in…

In this case, Judge Murguia made it clear that a plaintiff seeking to certify a FLSA class need not plead either the number of hours worked, or the amount of uncompensated overtime, so long as the complaint makes clear from the context the grounds upon which the claim rests.  Noting a split in the federal courts on this issue, Judge Murguia denied a motion to dismiss and held that Rule 8(a) was satisfied without any particular quantification so long as the complaint in issue made clear that the alleged FLSA violation was based on requiring the putative class representative and the class to perform certain tasks before and after their shifts without compensation.

Under the “careful what you ask for” category, Judge Gaitan faced an incongruous situation in this wage and hour class action brought against Farmland Foods.   In an FLSA and MMWL class that had been filed in 2010 and certified a year ago, Plaintiffs moved prevent Farmland from changing the very “doffing and donning “ policies it was challenging.  Specifically, having learned from Farmland’s employees that certain policy changes were being implemented, class counsel sought an evidence preservation order enjoining Farmland from changing its employment policies, and sought an order granting class counsel video access at any time within a prescribed 30-day window to observe and document these employment activities.   Plaintiffs argued that a preservation order was necessary to avoid the “irreparable injury” that would occur from what it termed “serial changes mid-litigation to its operational and compensation policies . . . and to allow the Court to render effective relief…

This term the Supreme Court granted cert to Genesis HealthCare Corp. v. Symczyk, No. 11-1059, an appeal from the Third Circuit decision, 656 F.3d 189 (3d Cir. 2011).  At issue is whether a defendant can moot a putative Fair Labor Standards Act (“FSLA”) collective action by "picking off" the named plaintiff through a Rule 68 offer of judgment before certification.  While the Court's decision will no doubt impact the future viability of wage and hour collective actions, it may also have the potential to affect Rule 23 class actions as well. Briefly, the plaintiff, Laura Symczyk, alleged that her employer, Genesis, improperly deducted her pay for meal breaks even though she often did not take them.  After answering, Genesis proffered a Rule 68 offer of judgment of “$7,500.00 in alleged unpaid wages, plus attorneys’ fees, costs and expenses.”  After the plaintiff refused the offer, Genesis moved to dismiss, arguing that…

12
Close