Employment Class and Collective Actions

Overview

Our success springs from early case investigation and assessment. We create a unique solution for each matter to achieve the client’s goals.

The number of employment class actions, representative actions, and Fair Labor Standards Act (FLSA) collective actions has exploded over the past decade and shows no sign of abating. While a handful of recent Supreme Court cases have made modest inroads for employers, many lower courts remain supportive of employment class action litigants and may view the process as necessary to constrain employer conduct. At the same time, the plaintiffs’ bar is continuing to develop counterstrategies designed to increase employer costs and to provide itself with settlement leverage.

While employment class action proponents and plaintiffs’ attorneys promote the view that any workplace dispute is subject to class or collective treatment, we believe that every class action and every class action defendant is unique. We work early to determine our client’s goals and strategies in the litigation. We believe in early case assessment. We work out creative strategies unique to each case. And we believe that effective use of information and technology systems can be used to streamline defense costs and enhance the employer’s defense.

We have handled class, representative, and collective actions relating to virtually any workplace issue. We routinely litigate wage-and-hour cases under federal law and the parallel laws of states that include California, New York and many others (which are often employee-friendly). These claims include everything from misclassification, off-the-clock time and regular rate issues, to less-well-known exemptions and claims under California’s Private Attorneys General Act (PAGA), a statute that adds potential penalties and has encouraged a plethora of employee lawsuits. We have written extensively on a range of employment class action issues, and have assisted employers in drafting arbitration agreements to deter class litigation. Through our blog, employmentclassactionreport.com, we also comment regularly on employment class action trends affecting employers.

Select Experience

Our recent employment class action litigation successes include the following:

  • We obtained a reversal of a years-old class action claim involving entitlement to retiree health insurance coverage before the United States Supreme Court.
  • We obtained a dismissal of putative nationwide wage-and-hour claims on personal jurisdiction grounds.
  • We have designed and defended arbitration programs with class action waivers for many employers.
  • We successfully tried a wage and hour class and PAGA action in California alleging unpaid wages, failure to provide meal and rest breaks, and related claims and penalties. The thirteen named plaintiffs, and the hundreds of employees they sought to represent, recovered only 5 percent of the relief they sought as the Court dismissed almost all claims.
  • We have successfully used both time studies and statistical analyses either to avoid class certification or to reduce class and claim sizes in settlement.

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Professionals

Name Title Office Email
Partner Los Angeles
Partner Cleveland
Partner Orlando
Partner Houston
Partner Houston
Partner Cleveland
Partner Los Angeles
Partner Chicago
Partner Orlando
Partner Los Angeles
Partner Orlando
Partner New York
Partner Cleveland
Partner Atlanta
Partner Cleveland
Partner Cleveland
Partner Cincinnati
Partner Cleveland
Partner Denver
Counsel Philadelphia
Associate Denver
Associate Chicago
Associate Cleveland
Counsel Los Angeles
Associate Orlando
Associate Atlanta
Associate Cleveland
Associate Houston
Associate New York
Associate New York
Associate Los Angeles
Associate Houston
Associate Orlando
Partner Los Angeles
Associate Los Angeles

Experience

Our recent employment class action litigation successes include the following:

  • We obtained a reversal of a years-old class action claim involving entitlement to retiree health insurance coverage before the United States Supreme Court.
  • We obtained a dismissal of putative nationwide wage-and-hour claims on personal jurisdiction grounds.
  • We have designed and defended arbitration programs with class action waivers for many employers.
  • We successfully tried a wage and hour class and PAGA action in California alleging unpaid wages, failure to provide meal and rest breaks, and related claims and penalties. The thirteen named plaintiffs, and the hundreds of employees they sought to represent, recovered only 5 percent of the relief they sought as the Court dismissed almost all claims.
  • We have successfully used both time studies and statistical analyses either to avoid class certification or to reduce class and claim sizes in settlement.
  • We believe in early case evaluation to streamline case management, reduce cost, and identify candidates for potential early settlements.
  • We have defended claims arising out of the application of Section 7(i) of the FLSA for retail commissioned salespeople, including in arbitration.
  • We have successfully handled numerous class actions for alleged state and federal wage-and-hour violations regarding piecework arrangements.
  • We have advised and defended employers in controversies regarding bonus programs and their effect on calculation of the regular rate for overtime purposes.
  • We have defended countless employers on a wide range of wage-and-hour disputes arising out of alleged “off-the-clock,” “donning and doffing” and “boot up and boot down” time.
  • We successfully moved to decertify a collective class of more than 1,000 work-at-home employees.
  • We have handled numerous cases involving the application to “auto-deduct” policies across a wide variety of industries.
  • We successfully opposed certification of a class of truck terminal supervisors claiming that they were misclassified as exempt for overtime purposes.
  • We tried and won a class action case involving alleged entitlement to retiree health insurance benefits following a plant closing, and defended the defense judgment on appeal.
  • We successfully represented a construction company and its subcontractors in a unique FLSA and prevailing wage case in a Miami federal court. The matter received national press attention due to our strategy to move to dismiss the case for lack of jurisdiction because the defendant paid in excess of the federal minimum wage.

Recognition

  • Chambers USA
    • Labor & Employment ‒ California (2017 to 2020)
    • Labor & Employment ‒ Florida (2007 to 2020)
    • Labor & Employment ‒ Ohio (2007 to 2020)
    • Labor & Employment ‒ Texas (2014 to 2020)
    • Labor & Employment ‒ Washington, D.C. (2017 to 2019)
  • The Legal 500 United States
    • Labor and Employment – Labor-Management Relations (2015 to 2019)
    • Labor and employment – Immigration (2017 to 2019)
    • Labor and employment – Labor and Employment Disputes (Including Collective Actions): Defense (2015 to 2019)
  • U.S. News – Best Lawyers "Best Law Firms"
    • Employment Law – Management: National (2011 to 2020); Cincinnati (2016 to 2020); Cleveland (2011 to 2020); Columbus (2011 to 2020); Denver (2012 to 2020); Houston (2011 to 2020); Los Angeles (2013 to 2020); Orlando (2011 to 2020); Washington, D.C. (2014 to 2020)
    • Labor Law – Management: National (2012 to 2020); Cincinnati (2020); Cleveland (2011 to 2020); Columbus (2011 to 2020); Denver (2012 to 2018); Houston (2011 to 2020); Los Angeles (2017 to 2020); Orlando (2011 to 2020); Washington, D.C. (2017 to 2020)
    • Litigation – Labor & Employment: National (2012 to 2020); Atlanta (2019 and 2020); Cincinnati (2020); Cleveland (2012 to 2020); Columbus (2015 to 2020); Denver (2012 to 2018); Houston (2014 to 2020); New York (2019 and 2020); Orlando (2012 to 2020); Washington, D.C. (2015 to 2020)
  • Recognized as one of the top law firms for client service, BakerHostetler was named to the 2020 BTI Client Service 30 for the sixth consecutive year.

Blog Posts

Blog

In The Blogs

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Employment Class Action Blog
Divided Ninth Circuit Reinstates Part of California's Anti-Arbitration Law
By Gregory V. Mersol
September 22, 2021
For many years, state and federal courts in California have opposed arbitration and have manufactured frameworks under which they become unenforceable despite the clear directives of the Federal Arbitration Act (FAA) and countless Supreme...
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Employment Class Action Blog
Spending Bill Would Place Class Action Waivers in Jeopardy
By Gregory V. Mersol
September 10, 2021
Only three years ago, the Supreme Court reversed the holdings of a large number of lower courts and held that class action waivers in arbitration agreements were enforceable. Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018). We blogged...
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Employment Class Action Blog
Court Refuses to Certify Class for Allegedly Defective Flight Attendant Uniforms Claims About Uniforms Not Themselves Uniform
By Gregory V. Mersol
August 20, 2021
The United States District Court for the Western District of Wisconsin has refused to grant certification in a two-year-old dispute over uniforms for airline personnel. In Gilbert v. Lands’ End, Inc., Case No. 19-cv-823-jdp (W.D. Wisc...
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Employment Class Action Blog
Sixth Circuit Limits Scope of Putative Nationwide FLSA Collective Actions on Personal Jurisdiction Grounds
By Gregory V. Mersol
August 18, 2021
Four years ago, in Bristol-Myers Squibb v. Superior Court, 137 S. Ct. 1773 (2017), the United States Supreme Court addressed an effort by plaintiffs to bring 600 product liability claims, mostly by non-Californians, in the form of a mass...
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Employment Class Action Blog
While the Ninth Circuit Added Clarity in Its Recent Uber Opinion, Legislative Challenges to Mandatory Arbitration May Be Ahead
By John B. Lewis
August 11, 2021
A U.S. Court of Appeals for the Ninth Circuit panel ruled that Uber Technologies drivers don’t fall within the Section 1 exemption of the Federal Arbitration Act (FAA) to mandatory arbitration because they are not a class of workers...
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