Kemper v. Westbury Operating Corp., 12-cv-0895 (E.D.N.Y. Oct. 18, 2012): The plaintiff, a former housekeeper, alleged that the defendant failed to pay overtime in violation of the Fair Labor Standards Act (FLSA) and New York Labor Law. The plaintiff sought conditional authorization to proceed as a collective action under Section 216(b) of the FLSA and approval to distribute a notice and consent form. The court granted the plaintiff’s motion, finding that she met the modest threshold of establishing a similarly situated class of potential plaintiffs. The court then rejected the defendant’s argument that the references to the plaintiff’s New York Labor Law claims in the proposed notice to the class were inappropriate. The court explained that potential plaintiffs with timely federal claims may want to consider the state law in deciding whether to opt in to the collective action or pursue their claims in a different forum. The defendant also argued that references to the website of the plaintiff’s counsel were inappropriate because the website contained attorney advertisements and this information did not add any value to the notice. The court rejected these arguments, and held that the website contained information falling within the boundaries of permissible attorney advertisements, and in any event, the information was readily available to any potential plaintiff who researched the law firm on an internet search engine.
Ninth Circuit Breaks New Ground, Addresses Standing and Extraneous Content in Background Check Disclosure Forms/Screens
On January 20, 2017, the Ninth Circuit became the first court of appeals to weigh in on several important legal issues for expensive, increasingly common background check class actions—specifically (a) the extraneous content and language in an employer’s background check disclosure forms and online screens that violate the federal Fair Credit Reporting Act (FCRA), and (b) the standing requirements to file background check claims. In Syed v. M-I, LLC, the Ninth Circuit held that (1) inclusion of a liability release in an employment background check disclosure is a willful violation of the FCRA, subjecting an employer to expensive statutory and punitive damages, and (2) this kind of violation results in a concrete harm that satisfies Article III standing, as recently clarified by the Supreme Court of the United States in Spokeo, Inc. v. Robins.
In advance of the holiday season, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is reminding retail employers to take precautions to prevent workplace injuries during major sales events, including Black Friday. According to a news release issued by OSHA on November 17, 2014, “[t]ragic consequences and…..
Ninth Circuit Upholds Federal Preemption of California’s Meal and Rest Break Laws for Interstate Commercial Drivers
In one of the year’s most anticipated court decisions for the trucking industry, International Brotherhood of Teamsters, Local 2785, et al. v. Federal Motor Carrier Safety Administration, No. 19-70413 (January 15, 2021), the U.S. Court of Appeals for the Ninth Circuit upheld a Federal Motor Carrier Safety Administration (FMCSA) ruling that federal rest break regulations preempted California’s meal and rest break rules, as applied to drivers of property-carrying commercial motor vehicles.