Presentation discusses litigating FLSA cases

At the same time that the number of Fair Labor Standards Act wage cases has skyrocketed in recent years, the number of EEOC claims has steadily declined, said Joseph Tilson, founding partner of Meckler Bulger & Tilson, in Chicago, during a recent CLE program.

Tilson, who moderated the course, "Procedural and Practical Issues in Litigating FLSA Collective Actions," asked, "What makes litigating wage and hour cases unique?" and "Would you rather see such cases handled at the federal or state level?"

Rex Burch of Bruckner Burch PLLC, Houston noted that the Class Action Fairness Act has forced lawyers on many cases into federal court whether they want to be there or not. Burch and his fellow panelist Ellen C. Kearns, counsel in the Labor and Employment Group at Foley & Lardner LLP, addressed the upside and downside for employees in federal versus state courts.

Burch pointed out that some states have better standards in class certification than Federal Rule [of Civil Procedure] 23, and that state courts understand their own laws and standards better than the federal government does. Kearns noted that state juries are "much more generous to plaintiffs in class action" so employers prefer federal court.

In addition to Burch and Kearns, experts addressing FLSA claims during the teleconference and webcast included Lisa (Lee) Schreter, partner at Littler & Mendelson in Atlanta and Nelson Thomas, partner at Dolin, Thomas & Solomon LLP in Rochester, NY.

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Kearns, who wrote a paper, "Arbitration Agreements and Class and Collective Actions under the Fair Labor Standards Act," addressed the question of opt-in and opt-out procedures applying to arbitration of class or collective actions in the context of Long John Silver's Restaurants Inc. v. Cole. In that case, "the arbitrator had allowed the plaintiff-employees to represent an opt-out class of current and former employees with FLSA claims." The employer argued in federal court to overturn the arbitrator’s decision because, in the employer’s interpretation, an opt-in class was required. In that case, the federal court would not overturn the arbitrator’s decision. Kearns' paper was provided as a handout.

Panelists also addressed the use of binding arbitration in FLSA cases. Burch and Thomas, who focus on representing employees, both said that arbitration can provide positive results. "I am seeing a lot of pluses for plaintiffs in arbitration," said Thomas.

Regarding communications in class actions, Schreter offered recommendations on the timing of employers communicating with individuals, noting that under FLSA, once a notice has gone out to the class, a court is going to look more closely at communications for any hint of intimidation.

Tilson called on Burch to answer the question, "In a class certification, when should a notice motion be filed?" In response, Burch pointed out that sometimes the notice of motion to conditionally certify can be filed prior to the lawsuit. The courts seem to apply different standards to the class certification depending on how far into the case it is, he added.

Schreter and Burch commented on the differences relative to discovery with respect to individual class members in misclassification cases where job descriptions in different parts of the country and company size come into play. Prior to taking questions from the audience, the panelists also addressed the use of experts in such class action FLSA suits, motions for summary judgment and how FLSA cases differed from discrimination cases. To view a portion of the materials released in connection with this program, go to www.abanet.org/cle. The full set of program materials may be accessed via the ABA Web store.

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