The Laconic Law Blog

The Supreme Judicial Court of Massachusetts has reversed a lower court order decertifying a class action against Wal-Mart for meal break and unpaid wage violations.  In addition to reversing the order, the Court ordered the class certified and reversed an award of partial summary judgment in favor of Wal-Mart.  Law.com has a story here.  Other blogs have posts on the case here, here and here.  A copy of the opinion is here.

The case is yet another harbinger of the continued spread of wage and hour class actions throughout the nation like kudzu.  Employers are well advised to invest the resources in ensuring wage/hour compliance before the class action arrives at the door.

The Class Action Defense Blog has a post today here on the Dukes v. Wal-Mart gender discrimination class action.  The U.S. Court of Appeals for the Ninth Circuit issued a revised opinion on December 11, 2007, again affirming that the case was appropriate for class action treatment.  The class covers all women employed by Wal-Mart since 1998 who were affected by the company’s alleged discriminatory pay and promotion practices.  That proposed class may include 1.5 million women.

Staples, Inc. announced a $38 million settlement of a wage and hour class action in California involving 1,700 assistant managers who were allegedly misclassified as exempt from overtime pay.  The company had previously estimated the potential liability in the case in SEC filings as up to $150 million.  The settlement is subject to court approval.

(h/t Wage Law for the initial read on this story)

On October 15, 2007, the U.S. District Court for the Northern District of Indiana certified a class of pickup and delivery drivers as to claims that the plaintiffs were misclassified as “independent contractors” under the Kansas Wage Payment Act and to common law claims for rescission, unjust enrichment and quantum meruit.  The class includes 102 current drivers and an unknown number of former drivers.  The plaintiffs seek rescission of their independent contractor agreements, repayment of costs and expenses, and payment of unpaid overtime.

The court also certified a national class with respect to the plaintiffs’ claims for a determination of participant status and entitlement to benefits under ERISA.  According to the Court, FedEx Ground employs approximately 12,000 pickup and delivery drivers.

Here is the court’s opinion:  In re FedEx Ground Package System, Inc. Employment Practices Litigation, No. 3:05-cv-00390-RLM-CAN (N.D.Ind. Oct. 15, 2007).

The case also contains a lengthy Daubert analysis with respect to FedEx’s motions.  The Daubert challenge was overruled, but the court decided to disregard the experts’ testimony.

 This case highlights the serious consequences for misclassifying workers as “independent contractors.”  FedEx also recently lost an appeal before the California Court of Appeals (Estrada v. FedEx Ground Package System, Inc., B189031 (Cal. Ct. App. June 13 2007) involving the issue of whether their single work zone drivers were employees or independent contractors under California law with respect to their right to entitlement to reimbursement for work-related expenses.  FedEx’s decision not to renew the contracts of all of the single work zone drivers in California after that decision has sparked additional litigation.

A recent decision by the U.S. District Court for the District of Columbia illustrates the relatively low threshold for conditional certification of a class under the Fair Labor Standards Act (FLSA) for purposes of notice to class members.  Memorandum Opinion, Castillo v. P&R Enterprises, Inc., No. 1:07-cv-01195 (Oct. 19, 2007).  A court may certify a conditional class of putative plaintiffs prior to discovery upon an initial showing that the members of the class are “similarly situated.”  Hoffman-LaRoche v. Sperling, 493 U.S. 165, 170 (1989).  As the court noted, the burden on the plaintiff at the class notice stage is only to come forth with a “modest showing” of a common plan or policy to deprive them of overtime compensation. 

The court granted a motion for conditional certification of a potential class of 760 janitorial workers based on the affidavits of two plaintiffs that they were denied overtime pay and told the company did not pay overtime.  The court further ordered the employer to turn over the names and addresses of all potential class members.