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The multitude of wage and hour claims and lawsuits that workers have filed under the Fair Labor Standards Act (“FLSA”), and its state law counterparts, have made wage and hour law the nation’s fastest growing type of litigation. All industries (including retail, financial services, hospitality, construction, technology, and communications) have been susceptible to these lawsuits.

The U.S. Department of Labor has estimated that 80% of employers are not in compliance with applicable wage and hour laws. The risk that an employer will be the target of a wage and hour lawsuit is now greater than ever, and wage and hour litigation will likely remain a source of significant exposure to employers well into the future. Worse yet, wage and hour litigation has become increasingly complex. While there are simple, black-and-white answers to some wage and hour questions, there are also a great many gray areas surrounding such issues as whether an exemption from overtime applies to certain employees.

Epstein Becker Green has some of the most respected litigators, counselors, and authors in the field of wage and hour law. With decades of combined experience, we offer an exceptional breadth and depth of knowledge that allows us to assist clients in three primary areas: compliance, litigation and training.

Compliance

Epstein Becker Green attorneys work with employers nationwide to help them achieve their business objectives in compliance with various federal and state wage and hour laws, including the FLSA, the Davis-Bacon Act and the Service Contract Act. The aim is to avoid government investigations and class action litigation by, among other things:

• Properly classifying employees as exempt or nonexempt from the federal and state minimum wage and overtime requirements;
• Recognizing what is compensable working time, and what is not;
• Evaluating payroll, salary basis and recordkeeping requirements and issues;
• Understanding how to calculate the regular rate that is used to determine any overtime compensation due; and
• Identifying records and notices to employees to be kept in order to evidence compliance with the law.

We perform these tasks for clients both as part of company-wide wage and hour audits, as well as analyses of individual employees as part of day-to-day consulting with employers. Compliance audits of all aspects of a company’s adherence to the requirements of the FLSA and state wage laws may be undertaken as a result of a lawsuit, a Department of Labor investigation, due diligence in a transactional setting or at an employer’s own initiative to conduct an internal self-audit. We also perform these complimentary audits for contractors with the government who may be debarred from doing future business because of wage and hour violations.

Litigation

When an employer is sued under federal or state wage and hour laws, Epstein Becker Green attorneys are among the most qualified and experienced to represent the employer. Our seasoned wage and hour litigators can aggressively defend any wage and hour lawsuit, whether it involves exemptions, working time, wage calculations or other wage and hour issues. Our attorneys also have the knowledge and skills to provide the client with a candid assessment of the case and to negotiate a favorable settlement, when appropriate.

Epstein Becker Green has represented employers in FLSA collective actions or state law wage and hour class actions (which differ from both individual FLSA actions and other civil class actions) with classes ranging in size from a dozen employees to 15,000 employees. In addition to the standard issues in such a case, other issues that arise in these matters include whether a court should certify a class, who should be part of the class, and how discovery should be conducted. Each of these issues can impact the employer’s potential liability in significant ways.

Examples of recent successes that Epstein Becker Green has achieved for clients in wage and hour litigation include:

• Obtaining denial of class certification in a lawsuit, where the wage claim was confined to a single plaintiff and settled for half the claim of the individual.
• Obtaining an injunction prohibiting plaintiffs’ lawyers from soliciting class members for FLSA collective action through billboards and radio commercials.
• Succeeding in getting the court to limit discovery to the opt-in plaintiffs and direct settlement negotiations before allowing plaintiffs’ counsel to conduct class-wide discovery.
• Obtaining summary judgment in the U.S. District Court for the Southern District of Florida, affirmed by U.S. Court of Appeals for the Tenth Circuit, in a collective action minimum wage lawsuit filed by 53 skycaps against an airline contractor seeking to invalidate the tip credit.
• Obtaining partial judgment in an overtime collective action in which plaintiff bus drivers alleged that they were entitled to overtime, and defendant argued successfully that the vast majority of its drivers were covered by the Motor Carrier exemption. Walters v. American Coach Lines of Miami, Inc, No. 07-22000-CIV-UNGARO/SIMONTON (S.D. Fla., July 29, 2008).
• Obtaining the voluntary dismissal of a collective action lawsuit brought against a caterer in the U.S. District Court for the Southern District of New York.
• Obtaining denial of class certification in a lawsuit regarding the payment of prevailing wages and benefits to a proposed class of HVAC technicians who worked on various public works projects throughout New York State. Jeavons v. Trane U.S., Inc., Index No. 4299-06 (New York Supreme, 3d Dept., Albany County, Dec. 7, 2007)(RDM).
• Getting FLSA collective action claims dismissed with prejudice in a lawsuit regarding an owner of a nationwide group of apartment communities that was filed in the U.S. District Court for the Southern District of New York.
• Settling on favorable terms government audits involving prevailing wages before they became lawsuits.
• Obtaining summary judgment for a technology company in an overtime lawsuit in the U.S. District Court for the Southern District of Texas, where an ex-employee challenged his classification as exempt under the administrative exemption.
• Succeeding in getting seven of eight counts against a government contractor in a federal and California state wage class and collective action dismissed based on performance of the work in a federal enclave and the failure to state a claim. Mersnick v. USProtect Corp., No. C-06-03993, 2006 WL 3734396 (N.D. Cal. Dec. 18, 2006).
• Garnering summary judgment for an international financial services firm in Illinois in a lawsuit brought by a floor trader under state law alleging unpaid bonuses and commissions.
• Obtaining dismissal of FLSA collective action claims based on mootness for a bank, which had made an offer of judgment to the named plaintiff. Ward v. The Bank of New York, 455 F. Supp. 2d 262 (S.D.N.Y. 2006).
• Winning a reversal of a district court ruling against a government contractor client and convincing the appeals court to grant a summary judgment in the client’s favor for a claim for monies arising from the increase in wages under the Service Contract Act. Lear Siegler Servs., Inc. v. Rumsfeld, 457 F.3d 1262 (Fed. Cir. 2006).

Training

The cost of violating federal or state wage and hour laws can be high. To avoid liability and limit claims, we have developed innovative techniques for our clients. Among our many services, Epstein Becker Green attorneys offer wage and hour training to human resources personnel, in-house counsel, and managers. Our attorneys have authored and edited numerous publications on the FLSA and state law, including the following four Thomson Publishing Group books: The Employer’s Guide to The Fair Labor Standards Act; The Fair Labor Standards Act Handbook for States, Local Governments and Schools; FLSA Exemption Handbook; and Public Employer’s Guide to FLSA Employee Classification. Please visit Thomson Reuters for more information about these publications.

About Epstein Becker Green

Epstein Becker Green is a national law firm focused on health care and life sciences; employment, labor, and workforce management; and litigation and business disputes. Our attorneys advise clients at every stage of their business lifecycle, delivering practical, results-driven counsel that shapes strategy, accelerates growth, and safeguards what matters most. We serve organizations of every size, from emerging startups to Fortune 100 companies, across the health care, life sciences, financial services, retail, hospitality, and technology industries, with sound legal solutions they can depend on when it counts. www.ebglaw.com