Not All Rounding Practices Are Created Equal: Indiana Court Certifies Class Despite Individualized Questions Concerning Hours Worked

Businesspeople at Water CoolerIn Schneider v. Union Hospital, Inc., two former employees brought a combined collective and class action against their employer claiming that its policy for rounding employees’ time violated the Fair Labor Standards Act (FLSA). The District Court for the Southern District of Indiana certified the combined class and collective action of over 1,800 hourly employees who were not paid overtime due to the rounding policy.

Union Hospital rounded employee time in one-tenth of an hour increments twice a day, once at the beginning of the shift and once at the end. The hospital argued that rounding is an acceptable practice under the FLSA as long as employees are paid for all hours actually worked. In this case, the Hospital argued (and produced evidence) that employees were not working during the time. According to the hospital, employees spent this time before and after their shifts socializing with co-workers, getting coffee and engaging in other non-work-related activities. The Hospital also pointed to its handbook provisions and argued that employees were not required to clock in five minutes before their shift start times nor directed to work during the five minutes prior to their shifts or in the five minutes after their shifts ended. Continue Reading

More Than Money: Qualcomm Promises Change to Settle Gender Pay Class Action

By Flazingo [CC BY 2.0], via Flikr

By Flazingo [CC BY 2.0], via Flikr

In early 2015, seven female employees of Qualcomm brought a gender discrimination class and collective action lawsuit on behalf of themselves and roughly 3,300 other female employees. They alleged Qualcomm violated Title VII and the Equal Pay Act, as well as related state laws, by affording them lower pay, opportunities, and benefits compared to their male counterparts.

The plaintiffs were employed by Qualcomm in science, technology, engineering, and math (STEM) and related roles. They alleged that female employees received lower base salaries than males in similar roles. They further alleged that Qualcomm’s organization-wide promotion policies—which allowed largely male managers to subjectively select individuals for advancement and to exclude women from the training and networking opportunities linked to promotion—resulted in either denying women promotions altogether or promoting them more slowly than equally qualified, or even less-qualified, male employees. According to the plaintiffs, this promotion system purportedly led to clear disparities between men and women in senior leadership roles in the organization. Continue Reading

Laura Reathaford Joins Daily Journal’s Weekly Appellate Report Podcast to Discuss Employment Class Action Wavers

Change AheadLast week, Partner Laura Reathaford sat down with Daily Journal’s Brian Cardile for a special episode of the Weekly Appellate Report Podcast. The podcast focuses on employment class action wavers and brings to light concerns facing employers and in-house counsel in California. With contradicting court rulings, Reathaford analyzes the potential impact for employment attorneys while discussing the future of class action wavers.

To listen to the full podcast, click here.



Around and Around We Go: Class Action Waiver Uncertainty Gains Momentum In The Ninth Circuit

ferris wheel

By Silvia [CC BY 2.0], via Pexels

Despite the California Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles, LLC, affirming the use of class action waivers in arbitration agreements, the Ninth Circuit has held that an arbitration agreement containing a class action waiver violated the National Labor Relations Act (NLRA), and was therefore, unenforceable. Continue Reading

Primary Beneficiary Test Expanded Under New York State Law Ends Intern Class Action

Internship concept with young man holding a tablet


As we previously reported here, the U.S. Court of Appeals for the Second Circuit in Glatt v. Fox Searchlight Pictures, Inc. held that an individual is properly classified as an unpaid intern where he or she “is the primary beneficiary of the relationship.” Under this test, an intern need not be compensated where the intern receives tangible and intangible benefits that are greater than the intern’s contributions to the employer’s operations. In making this determination, a court may look to factors such as the type of training received, the relevance of the internship to the intern’s formal educational program, and the extent to which the intern’s work accommodates the intern’s academic commitments, among other factors. Continue Reading

New York Law Journal Discusses The Future of Class Litigation at SCOTUS

By Collection of the Supreme Court of the United States [Public domain], via Wikimedia Commons

By Collection of the Supreme Court of the United States [Public domain], via Wikimedia Commons

On August 8, 2016, the New York Law Journal analyzed the impact of Justice Antonin Scalia’s death on class action jurisprudence. Prior to his death in February 2016, Justice Antonin Scalia dramatically guided and shaped the Court’s class action jurisprudence. He authored numerous key opinions that largely raised the difficulty of proceeding on a class action basis. For example, in a seminal case from 2011, the Court greatly expanded Rule 23’s commonality requirement, turning what was previously a low bar into a significant obstacle to class certification. In Comcast v. Behrend, the Court expanded Rule 23’s predominance requirement, holding that plaintiffs must establish at the certification stage that damages are calculable on a class-wide basis, whereas class plaintiffs had in the past often litigated this issue at the merits stage. Justice Scalia additionally authored numerous decisions upholding the enforceability of contractual waivers of class arbitration rights.

To the extent the Court has faced class action issues in the wake of Justice Scalia’s death, the Court has indicated a willingness to back away from certain positions set forth by Justice Scalia. Not surprisingly, class defendants have been less inclined to have the Court decide class issues, as a favorable outcome becomes more unlikely. The full New York Law Journal article can be found by clicking here.

How Can Courts and Litigants Efficiently Resolve PAGA Disputes?

Venable’s Laura Reathaford examines this topic in Los Angeles Lawyer cover story

Layout 1

Excerpted from June 2016 Los Angeles Lawyer magazine.

When it comes to litigating a representative action under the Private Attorney General Act (PAGA), there is no “one size fits all” approach. There is no requirement that it proceed as a class action, so parties and courts are left to their own creativity—and common sense—in determining how to proceed. Some courts have dismissed PAGA claims outright because the parties and the claims are too numerous or complex to be litigated, or tried, in any efficient manner.  Other courts have refused to do so even when the number of individual issues to be tried could result in clogging the court’s docket for months. Some courts have allowed a subset of the proposed group to proceed through discovery—and trial—while holding in abeyance the claims of the others. Still other courts have considered allowing a statistically significant sample of employees to represent the larger group in proving liability at trial. Continue Reading

Just When Employers Thought It Was Safe To Go Back Into The Arbitration Water…

The United States Court of Appeals for the Seventh Circuit has held that an arbitration agreement that waives an employee’s right to bring a class or collective action in any judicial forum as a condition of employment violates the National Labor Relations Act (NLRA) and is not saved by the Federal Arbitration Act (FAA). Continue Reading

Much-Anticipated New FLSA Regulations Dramatically Change Minimum Salary Requirements for Certain Overtime Exemptions


Today, the U.S. Department of Labor (the “DOL”) released its long-awaited revisions to the Fair Labor Standards Act’s (“FLSA”) executive, administrative and professional exemptions, commonly referred to as the “white collar” exemptions. In so doing, the DOL also significantly revised the prerequisites for treating an employee as exempt under the FLSA’s “highly-compensated” exemption. Continue Reading