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By a tight five-to-four decision, the United States Supreme Court’s Genesis Health Care Corp. v. Symczyk decision provides employers a method to “pick off” the lead plaintiff in an FLSA collective action using a Federal Rule of Civil Procedure 68 offer of judgment and by doing so, take out the remaining collective action.
Continue Reading Genesis: A Unicorn, or the Beginning of a New Tactic? Supreme Court Holds Employers Can “Pick Off” a Named Plaintiff and Defeat a FLSA Collective Action with an offer of Judgment, but Leaves Open If All Employers Can Employ This Strategy

As you might recall, in August we blogged on Martin v. Spring Break ’83 Productions, LLC, a case involving the blockbuster movie “Spring Break ’83” [stated with sarcasm], where the Fifth Circuit became the first federal appellate court to enforce a private FLSA settlement. In that blog, available here, we crossed our fingers and hoped the Fifth Circuit’s decision would come to a jurisdiction near you. Well, that hope is one step closer to reality as the plaintiffs/appellants – now the Petitioners – filed a Petition for Writ of Certiorari (the “Petition”) and asked the United States Supreme Court to review the case.
Continue Reading Martin v. Spring Break ’83 Productions, LLC … the Sequel or Part Deux? The Supreme Court is Asked to Review Whether a Private Settlement Agreement Dismissing FLSA Claims is Enforceable

Health care reform just got a clean bill of health from the United States Supreme Court. The Court today ruled on the constitutionality of the Patient Protection and Affordable Care Act (“PPACA”), and generally upheld the legislation in a 5-4 decision written by Chief Justice John G. Roberts.
Continue Reading Health Care Reform Survives Supreme Court Scrutiny – But Not Entirely Intact

The Supreme Court has issued its long awaited decision on the constitutionality of the Arizona Immigration law known as SB 1070. The case came before the Court following a decision by the lower courts to grant a preliminary injunction enjoining the application of four provisions of the Arizona law.
Continue Reading The Supreme Court Provides a Mixed Review of the Arizona Immigration Laws

Here’s a tip: If you have tipped employees whose job duties involve non-tipped work, check how much of their time they spend doing those non-tipped job duties. If it’s more than 20%, you may owe them minimum wage for the time they spend doing non-tipped work according to an Eighth Circuit decision that the Supreme Court of the United States recently declined to review.

The Fair Labor Standards Act allows for a "tip credit" for "tipped employees," defined as employees who work in an occupation where they customarily and regularly receive more than $30 a month in tips. The tip credit allows employers to pay less than minimum wage to tipped employees as long as (1) the tip credit is not greater than 50% of the minimum wage, and (2) the wage plus the tip credit add up to minimum wage.

In Fast v. Applebee’s International (pdf), a class of Applebee’s bartenders and servers who received a tip credit argued that they were owed the full minimum wage for the time they spent doing non-tip-producing work, like cleaning, taking inventory, and rolling silverware. According to a DOL handbook interpreting the DOL’s dual job regulations, if tipped employees spend more than 20% of their time doing non-tipped "general preparation and maintenance" work, then the employer owes the employees minimum wage for that non-tip-producing time and cannot take the tip credit. Applebee’s took a tip credit for the workers’ entire shift and did not pay minimum wage for the time servers and bartenders performed non-tipped work (although with the tip credit, the employees still received at least minimum wage for all time worked).…

Continue Reading Supreme Court Denies Review in Fast v. Applebee’s: Tip Credits for Tipped Employees Who Do Non-Tipped Work

The much-awaited decision of the United States Supreme Court is here. Dubbed by Justice Scalia as “one of the most expansive class actions ever,” the Supreme Court unanimously reversed the decision of the Ninth Circuit Court of Appeals which had affirmed the certification of a class of approximately 1.5 million current and former female employees alleging discrimination in pay and promotion.
Continue Reading Wal-Mart v. Dukes: Supreme Court Rejects “Expansive” Gender Bias Class Action In Absence of “General Policy of Discrimination”

On April 27, 2011, the United States Supreme Court held that the Federal Arbitration Act (“FAA”) preempted California state contract law which courts had applied to invalidate arbitration agreements that did not permit class arbitration. Although the decision involved a consumer contract, the Supreme Court’s reasoning provides a basis for employers to seek enforcement of employment agreements that prohibit workplace class actions and require the individual arbitration of employment-related claims.…

Continue Reading Supreme Court’s AT&T Mobility Decision Provides Support For Use Of Employment Arbitration Agreements With Class Action Waivers

On Tuesday, the U.S. Supreme Court heard oral argument on Wal-Mart’s appeal of the Ninth Circuit’s en banc decision upholding the certification of a class action gender discrimination lawsuit in Dukes v. Wal-Mart Stores, Inc. As noted by a number of commentators (among them The Wall Street Journal, Forbes, The Christian Science Monitor, and CNN), the tone of the Court’s questioning indicates that the Court is likely to rule in Wal-Mart’s favor.

This appeal stemmed from a federal court’s certification of a nationwide class of female employees of Wal-Mart who were allegedly subjected to discriminatory pay and promotion policies. The class seeks injunctive relief and money damages (back pay) for all women employed since December 1998 in positions ranging from entry-level hourly employees to salaried managers. The class certified in 2004 included 1.5 million women; it currently is estimated to include 3 million women. The district court and Ninth Circuit certified the class after concluding that statistics and sociological expert testimony could allow Plaintiffs to show that Wal-Mart’s culture, when combined with its decentralized decision-making structure, resulted in discrimination against Wal-Mart’s female employees. Those courts approved class certification despite (1) Wal-Mart’s written policy of anti-discrimination, (2) evidence that there was no gender-based pay disparity at 90% of Wal-Mart’s stores, (3) an admission by plaintiff’s expert that he could not say whether discrimination was happening .05% or 95% of the time, and (4) a class that included at least 544 female store managers who would have been both victim and discriminator, under the plaintiffs’ theory.…

Continue Reading A Skeptical U.S. Supreme Court Vigorously Questions Certification of a Mammoth Sex-Discrimination Class Action Lawsuit