Joe’s Crab Shack Managers Overcome Class Hurdles to Move Forward with Class Certification of Misclassification Case

A helpful overview from JDSupra that notes how the court addressed common class certification disputes issues is available here (excerpt below):

Although some of the plaintiffs could not accurately account for the exact amount of time spent performing non-exempt tasks, the court noted that “courts in overtime exemption cases must proceed through an analysis of the employer’s realistic expectations and classification of tasks rather than asking the employee to identify in retrospect whether, at a particular time, he or she was engaged in an exempt or nonexempt tasks.”  It stated that “[b]y refocusing its analysis on the policies and practices of the employer and the effect those policies and practices have on the putative class, as well as narrowing the class if appropriate, the trial court may in fact find class analysis a more efficient and effective means of resolving plaintiffs’ overtime claims.” (link)

Wage Theft on the Rise

Wage theft claims appear to be on the rise:

"David Weil, the director of the federal Labor Department’s wage and hour division, says wage theft is surging because of underlying changes in the nation’s business structure. The increased use of franchise operators, subcontractors and temp agencies leads to more employers being squeezed on costs and more cutting corners, he said. A result, he added, is that the companies on top can deny any knowledge of wage violations.

'We have a change in the structure of work that is then compounded by a falling level of what is viewed as acceptable in the workplace in terms of how you treat people and how you regard the law,' Mr. Weil said.

His agency has uncovered nearly $1 billion in illegally unpaid wages since 2010. He noted that the victimized workers were disproportionately immigrants." (link)

Here in New York:

"New York’s attorney general, Eric T. Schneiderman, has recovered $17 million in wage claims over the past three years. 'I’m amazed at how petty and abusive some of these practices are,' he said. 'Cutting corners is increasingly seen as a sign of libertarianism rather than the theft that it really is.'” (link)

Some employer advocates claim the rise in wage claims is just "opportunistic lawsuits:"

"Lee Schreter, co-chairwoman of the wage and hour practice group at Littler Mendelson, a law firm that represents employers, said wage theft was not increasing, adding that many companies had become more vigilant about compliance. But that has not stopped lawyers from bringing wage theft complaints because of the potential payoff, Ms. Schreter said. 'These are opportunistic lawsuits,' she said." (link)

But you have to ask yourself -- why would a plaintiff's attorney bring a wage and hour lawsuit on contingency that lacked merit?  If the case has no merit plaintiff's counsel will lose and won't obtain any fees -- an attorney seeking profit is unlikely to do that.

Moreover, wage and hour lawsuits are usually pretty clear-cut -- the employer either paid minimum wage/overtime or the employer did not -- it's often that simple.

What do you think?