Wage and Hour: Litigation, Settlements and Compliance
Wage and hour cases are on the rise particularly as technology continues to fundamentally transform the many ways in which people interact with their employers. As an experienced litigator or in-house counsel, you need to be in the know to help mitigate the risk associated in this ever changing field.
Join this two-hour webcast as our key thought leaders and practitioners help you grapple with the ever-evolving landscape of wage and hour law. They will provide important and timely overview of the recent rules and regulations along with training on best practices in dealing with:
- Wage and Hour Litigation – Handling and preparing for the investigation, analysis on the recent cases and latest defense strategies
- Settlements Considerations including calculating damages, obtaining settlement agreements and tax concerns
- Wage and Hour Compliance – Best Practices, Effective Compliance Programs and Penalties for Non-Compliance
- Up-to-the minute regulatory changes and a lot more!
Tracy Stott Pyles , Shareholder,
Littler Mendelson P.C
** Speaker Talking Points to be added soon.. **
Glenn S. Grindlinger, Shareholder ,
Fox Rothschild LLP
- Litigation Continued
- Collective Certification – FLSA 29 U.S.C. § 216(b)
- Allegations that individuals are similarly situated to Plaintiff
- Putative Collective Action Members must affirmatively file a form with the Court and opt-into the lawsuit
- Collective Certification is really a request by plaintiff to send notice to putative collective action members inviting them to opt-into lawsuit
- Two step process
- First step – Early in the case
- Low standard for plaintiffs to satisfy
- Allege a common policy or scheme that impacts similarly situated employees
- Usually satisfied with the complaint and an affidavit from plaintiff
- Some jurisdictions require evidence that other similarly situated employees are interested in joining the suit.
- Second Step – End of Discovery
- Motion of Citification or Decertification
- More rigorous standard set by court – but less rigorous than Rule 23
- Evidence that employees were affected by a common policy or scheme that violated the FLSA and impacted the collective in a similar manner.
- First step – Early in the case
- Two step process
- State Law Claims i. Governed by Rule 23 of the FRCP ii. Plaintiffs must prove; 1. Numerosity – more than 40 individuals in class; 2. Commonality — common questions of law and fact to the class in which the answer to those common questions is the same for all class members; 3. Typicality – the claims of the plaintiff are typical for the class and the defenses to those claims would be the same to all class members; 4. The Plaintiff and Plaintiff’s attorneys will fairly and adequately protect the interests of the class; and 5. An element from FRCP 23(b) a. Prosecuting separate actions would create a risk of inconsistent verdicts that would impact class members b. The defendant has acted in a manner that final injunctive relief is appropriate; or c. Common questions of law or fact predominate over individual interests. iii. Wal-Mart v. Dukes – Requires courts to rigorously apply these factors iv. Comcast – issue of whether damages must be measured in the same manner for all class members.
- Collective Certification – FLSA 29 U.S.C. § 216(b)
- Settlements of Wage & Hour Claims a. FLSA Claims i. Named Plaintiff Only 1. Court Approval a. Generally necessary in order to get a valid release of claims. b. Some jurisdictions will not dismiss the action unless it reviews the settlement papers 2. Confidentiality a. If court approval is required, it is likely that the settlement agreement will not be confidential b. Settlement agreement can include clauses prohibiting parties from publicizing settlement. ii. Collective Basis 1. Court approval required 2. Settlement cannot be confidential 3. Opportunity for collective members to opt into lawsuit as part of settlement 4. Enforceability of the release with respect to collective action members that do not opt in. b. State claims i. Named Plaintiff Only 1. Same as any other state law claims against an employer (e.g., discrimination) 2. Court approval usually not required 3. Easier to enforce release and confidentiality provisions ii. Class-wide settlements 1. Must comply with Rule 23 or its state law equivalent 2. Notice to class 3. Opportunity to opt-out and object 4. Court approval required
Johnine P. Barnes , Shareholder,
Greenberg Traurig LLP
- Classifying Positions (non-exempt vs. exempt)
- Salary Test:
- $455 (or $27.63/hour for computer employees)
- Maintaining “salary basis”
- Duties Test:
- Executive (manage; customarily direct 2 or more FTE’s; hire/fire)
- Administrative (office work related to business operations; discretion)
- Professional (work requires advanced knowledge; field of science or learning; prolonged specialized study; includes discretion)
- Creative Professional (work requires creativity or talent; artistic or creative field)
- Computer Employee (systems analyst, programmer, software engineer or similarly skilled worker performing specific tasks)
- Outside Sales (sales/contracts; off-site)
- Highly-Compensated Employees ($100k total; customarily perform at least one duty of executive, administrative or professional employee
- Salary Test:
- Exemption Challenges.
- Misclassification (i.e., “important”, salaried jobs)
- Close Calls
- Misclassifying workers as independent contractors
- Differing state laws
- Variation within titles
- Changes over time
- Salary Basis Challenges
- Comp time
- Docking pay (with limited exceptions)
- Preparation time (dressing, logging in, etc.)
- Training Time — typically compensable, unless:
- Attendance is voluntary; not during regular hours; not directly related to the job; employee does not perform any productive work
- Calculating the “regular rate of pay”
- “Working off the clock”
- Improper Wage Deductions (state laws)
- Meal/Rest Periods (state laws)
- What Should You Be Doing?
- Establish policies regarding overtime/outside work
- Review alternatives such as fluctuating workweek method
- Conduct periodic internal audits – classification and pay practices
- Consider changes/communications carefully and with counsel
- Review/revise job descriptions
- Make sure meal/rest periods are addressed in relevant states
- Establish mechanisms for compliance
- Consider having non-exempt employees review time records and certify time
- Consider developing complaint procedure to allow employees to report concerns or questions about payments
Who Should Attend:
– In-House Counsel
– HR and Personnel professionals
– Compliance Officers
– Risk Officers
– Senior Management
– Employment and Labor Lawyers
– Employment law advisors
– Employee relations professionals
– Legal Consultants
– Legal Executive
– Legal Officers
– Other Related Professionals
Tracy Stott Pyles litigates on behalf of management in all areas of labor and employment law, with an emphasis on cases involving wage and hour claims, and allegations of harassment, discrimination and retaliation. She handles both single‐plaintiff litigation and class actions in state and federal court and has appeared before various administrative agencies, including the Equal Employment Opportunity Commission, the Ohio Civil Rights Commission, and the National Labor Relations Board.
Tracy also counsels both large and small clients on a variety of employment matters, including employee discipline issues, wage and hour laws, pay practice compliance, and adherence to federal and state family and medical leave laws. Her approach is solutions‐oriented and practical. Tracy frequently speaks and trains human resource professionals and managers on wage and hour compliance, harassment prevention, family and medical leave laws and recent developments in employment law.
Tracy Stott Pyles litigates on behalf of management in all areas of labor and employment law, with an emphasis on …
Glenn represents management in the full spectrum of labor and employment law matters. He regularly defends clients in single plaintiff cases and class actions involving claims of Fair Labor Standards Act (FLSA) and state wage and hour law violations. He also routinely represents clients in federal and state courts and arbitration for and before government agencies in cases alleging age, race, national origin, gender, disability, sexual orientation and religious discrimination, harassment and retaliation.
Glenn’s practice is also preventative in nature. He counsels clients on day-to-day employment, wage and hour, labor relations and contractual matters as well as the employment law issues that arise in connection with mergers and acquisitions. He also regularly conducts wage and hour audits for Fortune 1000 companies and nonprofits. Glenn is a graduate of Cornell University and he received his law degree from New York University.
Glenn represents management in the full spectrum of labor and employment law matters. He regularly defends clients in single plaintiff …
Johnine P. Barnes is a Shareholder in the Washington, DC office of Greenberg Traurig LLP. Ms. Barnes practices in the area of labor and employment and litigation, and is Chair of the firm’s Labor & Employment Section’s Statutory Compliance and Contracts and Regulatory Practice Group. She is experienced in litigating and defending administrative claims of harassment, discrimination and retaliation and wage and hour matters under federal and state statutes governing employment. Additionally, Ms. Barnes counsels and represents companies, governments and associations on labor law issues. She has been recognized as a Washington, D.C. Super Lawyer and Outstanding Outside Counsel of the Year by the National Bar Association’s Commercial Law Section for excellence in her practice.
Johnine P. Barnes is a Shareholder in the Washington, DC office of Greenberg Traurig LLP. Ms. Barnes practices in the …
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About Littler Mendelson P.C
With more than 950 attorneys and 57 offices, Littler Mendelson is the largest U.S.-based law firm exclusively devoted to representing management in employment and labor law matters. Littler has extensive resources to address the needs of U.S.-based and multi-national clients from navigating domestic and international employment laws and labor relations issues to applying corporate policies worldwide. Given Littler’s singular focus in the area of labor and employment law, many Littler attorneys have spent their careers cultivating full-time practices solely devoted to employment law subspecialties, such as international employment and labor law, class action prevention and litigation, immigration and global migration, unfair competition and trade secrets, labor relations, privacy and employee benefits. Preventative programs such as class action audits help employers to correct problems before they develop into costly and time-consuming lawsuits. And Littler’s commitment to using state-of- the-art technology enables attorneys and staff to share vital knowledge with clients and each other at a moment’s notice across multiple time zones.
About Fox Rothschild LLP
Fox Rothschild LLP is a national, full-service law firm with more than 550 attorneys practicing in 18 offices coast to coast. The firm has been serving clients for more than a century, and it has ranked among the nation’s 250 largest firms for many years, according to The National Law Journal. Fox Rothschild’s lawyers provide a full range of legal services to public and private companies – from family-run businesses to multinational corporations. The firm also represents charitable, medical and educational institutions both in the United States and in more than 50 countries worldwide.
About Greenberg Traurig LLP
Greenberg Traurig LLP, an international, full-service law firm with approximately 1750 attorneys in 36 offices in the United States, Latin America, Europe, the Middle East and Asia, has diverse team of more than 100 labor and employment attorneys comprising a practice selected as a 2011 Practice of the Year for Employment by Law360 and ranked in National Tier 1 of 2011-2012 U.S. News-Best Lawyers® Best Law Firms in Employment Law – Management, Labor Law – Management, Litigation – Labor and Employment and Immigration Law