2.3.10

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Class and collective action lawsuits asserting wage and hour claims continue to outpace all other types of employment litigation in the federal courts. The volume of such cases increases year after year, and there is nothing to suggest that the trend will reverse itself anytime soon. The plaintiffs' bar that specializes in this area of employment law continues to grow, and with each passing year gets more expert, creative and aggressive in pursuing class and collective action lawsuits under federal and state wage and hour laws.

The substantive class claims generally fall into one of two groups: (1) “improper exemption” claims, in which employees or former employees challenge an employer’s decision to classify them as “exempt” (claim for back overtime), or (2) “off-clock work” claims, in which employees or former employees allege that the employer failed to pay them for all compensable time (claim for back pay, including but not limited to overtime).

When claims like these are pursued on behalf of large groups of employees and former employees, the potential exposure increases dramatically, largely due to the increased number of claimants, but also partly due to the liquidated and statutory damages that are available under the Fair Labor Standards Act and most state wage and hour statutes. For this reason, educated plaintiffs' lawyers are always looking for the types of claims that lend themselves to large class application. These include challenges to exempt classifications, unpaid donning and doffing of required uniforms and safety equipment, missed meal breaks where the employer automatically deducts a lunch period from the paid workday, and even unpaid computer boot-up time. The latter claim has been very popular in the context of customer service call center employees alleging they must perform preliminary duties to be ready to take their first call at their scheduled shift start.

Another reason for the continued onslaught of such litigation is the ease with which plaintiffs' counsel are able to get a “class” certified, especially in collective actions under the FLSA. The standard in many federal courts for obtaining a “conditional” (that is, preliminary) certification of a collective action is relatively low, and absent the right facts, conditional certification can be a difficult issue for employers to win. Once the collective action is conditionally certified, the court orders that a notice be sent to all so-called “similarly situated” employees and former employees, inviting them to join the lawsuit.

Former employees, in particular, are more likely to accept the court’s “invitation.” With our troubled economy, there is a large supply of unhappy former employees who feel that they have nothing to lose, and it appears that this is contributing to the continued increase in wage and hour class and collective actions.

More than ever, there is significant value in being proactive when it comes to wage and hour compliance. Much can be done to lessen the chance of becoming a target defendant in wage and hour litigation, and the same proactive steps can also increase an employer’s ability to defend itself in litigation in the event that it must do so. For more information on wage and hour compliance measures, please contact any member of the Wage & Hour Practice Group or the Constangy attorney of your choice.

Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A “Go To” Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by publications such as Chambers USA, Super Lawyers, and Top One Hundred Labor Attorneys in the United States. More than 100 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offi ces are located in Georgia, Florida, South Carolina, North Carolina, Tennessee, Alabama, Virginia, Massachusetts, Missouri, Illinois, Wisconsin, Texas and California. For more information, visit www.constangy.com. 

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