Presenting a live 90 ‐ minute webinar with interactive Q&A FLSA Collective Action Discovery Strategies Discovery Tactics Before and After Conditional Certification of the Opt ‐ In Class WEDNES DAY, JANUARY 19, 2011 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: T d ’ f l f William C. Martucci, Partner, Shook Hardy & Bacon , Washington, D.C. Kristen A. Page, Partner, Shook, Hardy & Bacon , Kansas City, Missouri Jenny R. Y ang, Partner, Cohen Milstein Sellers & Toll , Washington, D.C. The audio portion of the conference may be accessed via the p y telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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FLSA Collective Action Di Discovery Strategies St t i Discovery Tactics Before and After Conditional Certification of the Opt-In Class Wednesday, January 19, 2011 William C. Martucci, Partner, Shook, Hardy & Bacon , Washington, D.C. Kristen A. Page, Partner, Shook, Hardy & Bacon , Kansas City, Missouri Jenny R. Yang, Partner, Cohen Milstein Sellers & Toll , Washington, D.C. 4 Shook, Hardy & Bacon
Contact Information Willi William C. Martucci C M t i Shook, Hardy & Bacon 816-474-6550, 202-783-8400 wmartucci@shb com wmartucci@shb.com Kristen A. Page Shook, Hardy & Bacon , y 816-559-2511 kpage@shb.com Jenny R. Yang Cohen Milstein Sellers & Toll 202-408-4600 jyang@cohenmilstein.com 5 Shook, Hardy & Bacon
Program Overview Outline Outline Introduction – The FLSA “Wage War” Litigation Environment and Procedural Issues The FLSA Collective Action Discovery Foundation The FLSA Collective Action Discovery Foundation Focused Considerations in FLSA Collective Action Discovery Discovery Challenges and Resolving Disputes Special Discovery Issues for Consideration Selected Trial Issues in FLSA Actions Wrap Up and Questions 6 Shook, Hardy & Bacon
The FLSA Litigation Environment Outline Outline Introduction – The FLSA “Wage War” Litigation Environment and Procedural Issues • The Wage War Litigation Setting • • Procedural Issues That May Impact Discovery Scope Procedural Issues That May Impact Discovery Scope – Jurisdiction, Removal and Statutes of Limitation • Foundation for the Discovery Discussion Foundation for the Discovery Discussion – Basic FLSA Case Sequence and Two-Tier Framework – Overview of Notice, Opt-In and Decertification Steps , p p 7 Shook, Hardy & Bacon
The Age of “Wage Wars” • • Workers Workers – from truck drivers to stockbrokers – are from truck drivers to stockbrokers are winning huge overtime lawsuits. • These are the days of “the wage wars,” according to Business Week. 8 Shook, Hardy & Bacon
Significant Issues – High Stakes No one tracks precise figures, but lawyers on both sides estimate that over the No one tracks precise figures, but lawyers on both sides estimate that over the last few years companies have collectively paid out more than $1 billion annually to resolve these claims, which are usually brought on behalf of large groups of employees. What’s more, companies can get hit again with suits on behalf of different groups of workers or for alleged violations of different provisions of a complex tapestry of laws. Framed on the wall of Attorney i i f l t t f l F d th ll f Att Thierman’s office, for example, is a copy of a check from a case he settled for $18 million in 2003 on behalf of Starbucks store managers in California. (Thierman is a former corporate defense counsel.) But the coffee chain is currently defending overtime lawsuits filed by other attorneys in Florida and currently defending overtime lawsuits, filed by other attorneys, in Florida and Texas. Wal-Mart Stores is swamped with about 80 wage and hour suits, and in the past two years has seen juries award $172 million to workers in California and $78.5 million in Pennsylvania. 9 Shook, Hardy & Bacon
Shook, Hardy & Bacon A Dramatic Rise in Complaints 10
The Wage Wars and the “New Deal” Foundation Foundation • The core wage and hour law the federal Fair Labor • The core wage and hour law, the federal Fair Labor Standards Act (FLSA), has been on the books since 1938. • The New Deal statute, which mandated that a broad Th N D l t t t hi h d t d th t b d swath of the workforce receive 90 minutes’ pay for every hour worked beyond 40 in a week, had two goals. • One was to reward laborers who put in long hours. • Another was to expand employment by making it cheaper for companies to hire additional workers than cheaper for companies to hire additional workers than pay existing ones time and a half. • This New Deal law is the foundation for the wage and hour explosion hour explosion. 11 Shook, Hardy & Bacon
Foundational Procedural Issues – FLSA Jurisdiction FLSA Jurisdiction • • The FLSA authorizes court actions by employers and the Secretary The FLSA authorizes court actions by employers and the Secretary of the Department of Labor to recover damages for violation of the Act’s Minimum Wage and Overtime provisions and to enforce the prohibition against retaliation. 29 U.S.C. § 216(b) and (c). prohibition against retaliation. 29 U.S.C. § 216(b) and (c). • Federal and state courts thus have concurrent jurisdiction over FLSA claims. See generally Forsyth v. Central Foundry Co ., 240 Ala 277 1 WH Cases 1039 (Ala 1940) Ala. 277, 1 WH Cases 1039 (Ala. 1940). Federal courts have Federal courts have federal question jurisdiction over suits brought under the FLSA. 28 U.S.C. § 1331. • A federal court that hears an FLSA claim may exercise supplemental jurisdiction over a related state claim. See 28 U.S.C. § 1367. 12 Shook, Hardy & Bacon
Foundational Procedural Issues – Removal of FLSA Claims Removal of FLSA Claims • • Defendants may remove cases alleging FLSA claims to Defendants may remove cases alleging FLSA claims to federal court as a matter of right. 28 U.S.C. § 1441(a); Breuer v. Jim’s Concrete of Brevard, Inc. , 538 U.S. 691 (2003). 13 Shook, Hardy & Bacon
Foundational Procedural Issues – Statutes of Limitation as They May I Impact Discovery Scope t Di S • • The FLSA provides a period of two years “after the cause of action accrued” The FLSA provides a period of two years after the cause of action accrued in which to file a complaint for unpaid wages, overtime, or liquidated damages in federal or state court, 29 U.S.C. §255(a). The FLSA limitations period is extended to three years after such causes of action accrue for period is extended to three years after such causes of action accrue for violations that are “willful.” 29 U.S.C. §255(a). The plaintiff carries the burden of pleading and proving that a violation is willful. • The FLSA’s statute of limitations does not preempt state limitations periods for state wage and hour violations (in some instances, they may be longer). • Failure to plead the FLSA’s statute of limitations as a defense will result in waiver of the defense. Hodgson v. Humphries , 454 F.2d 1279, 1283-84, 20 WH Cases 444 (10 th Cir. 1972) (holding statute of limitations waived if not ( ) ( g asserted in pleading). 14 Shook, Hardy & Bacon
Statutes of Limitation and the Willfulness Issue Willfulness Issue • • In McLaughlin v Richland Shoe Co In McLaughlin v. Richland Shoe Co. , 486 U.S. 128, 28 WH Cases 486 U S 128 28 WH Cases 1017 (1988), the Supreme Court held that the standard of willfulness used in awarding liquidated damages under the Age Discrimination in Employment Act (ADEA) also applies in determining whether in Employment Act (ADEA) also applies in determining whether violations of the FLSA are “willful,” so as to extend the statute of limitations period to three years. • Under Richland Shoe , a violation is willful if the defendant either knew his or her conduct violated the FLSA or showed reckless disregard for whether his or her actions complied with the Act. g p 15 Shook, Hardy & Bacon
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