Even before the current pandemic crisis, we have noticed a growing trend in the filing of class action lawsuits challenging, under the Consolidated Omnibus Budget Reconciliation Act (COBRA), notices required to be issued by covered employers regarding continuation health care coverage available to employees and their beneficiaries under a variety of circumstances, including involuntary or voluntary job loss. We believe that trend will only accelerate in the wake of ... Keep Reading »
Labor, Employment & ERISA Class Action Articles
The latest class action developments and trends in labor, employment and ERISA, including news, key cases, and strategies.
Reporting for Work
Does reporting for work require physically showing up at the place ready to work? The Ninth Circuit just confronted this issue. It decided that California’s Wage Order No. 7-2001 does not require an employee to report to work in person in order to qualify for reporting time pay. No physical presence is required. Although this case does not directly implicate the variety of remote and virtual work arrangements that have been instituted in light of the current public ... Keep Reading »
A Dart Across the Bow
The Ninth Circuit Court of Appeals recently underscored that removal practice under the Class Action Fairness Act (CAFA) differs in some important respects from traditional removal practice in non-CAFA cases. It did so because, “[i]n some of our early cases interpreting CAFA, we adopted legal standards that were influenced by a general ‘presumption against federal jurisdiction.’” Now, of course, the Supreme Court in Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81 ... Keep Reading »
Hearsay What? EDNY Finds That Class Certification Evidence Must Be Admissible
Lin v. Everyday Beauty is an Eastern District of New York decision addressing an issue that has divided district courts in the Second Circuit and elsewhere: Whether a federal court may consider inadmissible evidence when deciding a class certification motion. This district court found that it could not do so. The plaintiffs, former retail sales employees of the defendants, moved to certify a class of essentially everyone employed by the defendants, beauty supply ... Keep Reading »
Fifth Circuit Bars Notice of FLSA Collective Actions to Arbitration-Bound Employees
The Fifth Circuit recently became the first federal court of appeals to hold that employees who signed arbitration agreements should not receive notice of collective actions. This case of first impression among the courts of appeal could serve as a powerful tool for employers combatting collective actions under the Fair Labor Standards Act (FLSA). Accordingly, we think the decision is deserving of more detailed analysis than a mere summary. A Splintered Approach In ... Keep Reading »
Equal Pay and Class Action Implications
After winning the World Cup on Sunday with a thrilling 2-0 victory over the Netherlands, the U.S. women’s national soccer team laid claim to being the best women’s soccer team in history. They celebrated their victory at the trophy presentation to the deafening sounds of stadium chants. Not “USA, USA,” but “Equal pay, Equal pay.” The U.S. players had already sued their national federation, the U.S. Soccer Federation, for a pay increase, asserting that the men’s team ... Keep Reading »
Opt-Out Arbitration Program Binds Employees in Wage and Hour Class Action
A recent decision by a Wisconsin district court illustrates the impact of an arbitration agreement on class actions. The plaintiffs alleged violations of the Fair Labor Standards Act (FLSA) and state wage and overtime laws, claiming that employees were not compensated for 15 minutes of activity at the start of every workday and that actual pay was understated for purposes of calculating overtime. The defendants moved to compel arbitration on an individual basis. The ... Keep Reading »
Don’t Count Your Chickens – Or State Citizens for CAFA Exceptions – Before They Hatch
The Ninth Circuit vacated a remand order implicating the local and home-state controversy exceptions to CAFA jurisdiction in a putative class action by former California resident employees of Kentucky Fried Chicken (KFC) for state wage-and-hour law violations. The court ruled that the plaintiffs did not meet their burden to prove that “greater than two-thirds of proposed class members” were residents of California to invoke the exceptions. Originally filed in ... Keep Reading »
Employers and Employees Look Ahead to Potential Impact of SCOTUS Rulings on Arbitrations vs Class Action Cases
Carlton Fields Shareholder Julianna Thomas McCabe was quoted by CNBC in an article about whether the U.S. Supreme Court will make it harder for workers to take their employers to court. A fair arbitration is better and faster than a trial for both parties, said McCabe, who leads the firm’s National Class Actions practice group. McCabe told CNBC the Supreme Court appears “extremely interested in this issue” ahead of oral argument in Henry Schein Inc. v. Archer and White ... Keep Reading »
Must a Plaintiff Representing Unnamed Parties Under California’s Private Attorney General Act Comply with Rule 23’s Requirements?
Must a plaintiff who brings an action under California’s Private Attorney General Act (PAGA) comply with Rule 23’s requirements? Although the Ninth Circuit has not addressed the issue, one California federal district court recently weighed in, reiterating the California Supreme Court’s 2014 decision in Iskanian v. CLS Transp. Los Angeles, LLC that a PAGA action is different than a class action and more akin to a qui tam suit. Plaintiff, a Costco employee, filed suit ... Keep Reading »
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