The FLSA on Appeal

Rule 68 Offers of Judgment - The Supreme Court of the United States is poised to issue a decision on whether a Rule 68 Offer of Judgment moots an FLSA class in its infancy. In December, the Court heard arguments in a case involving a registered nurse meal break case. Prior to moving for conditional certification, Genesis Healthcare propounded upon the plaintiff an offer of judgment in an amount of her unpaid wages. Upon the offer not being accepted, Genesis Healthcare moved to dismiss the case. The District Court agreed and the Third Circuit reversed. You can listen to the arguments before the Supreme Court here as to whether an offer of judgment to a named plaintiffs in a collective action extinguishes the entire lawsuit.

http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-1059

It should be noted that the collective action mechanism is of great importance to victims of wage theft. Allowing an employer to pick off employees who attempt to assert their rights is simply another wall put up between the victims of wage theft and their fair day’s pay.

Successor Liability – The Seventh Circuit Court of Appeals heard arguments last week on whether or not the common law doctrine of successor liability extends to claims brought under the FLSA. The Seventh Circuit, along with most other appellate courts, has applied the doctrine consistently avoid undercutting federally protected labor and employment rights when the assets of a business are sold. Under state law, normally an employer can sell their assets without any provision for liabilities – including those arising under a federal employment law – Title VII, ERISA, NLRA. However, federal courts have used a broader approach to successor liability to ensure victims of federally protected employment law are made whole in an effort to meet the Congressional intent. You can find the argument here.

www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=12-2440_001.mp3

Again, ensuring an employer make its employees whole through the doctrine of successor liability is a key to stopping wage theft.