The Supreme Court Renders an Important Pro-Employer Decision

In the past two weeks, both the United States Supreme Court and the Fifth Circuit Court of Appeals have rendered decisions that will add roadblocks to certain employee lawsuits.  Last week, the Supreme Court decided Genesis Healthcare v. Symczykwhich I have previously identified as a case to watch in 2013 (here).

In Genesis Healthcare v. Symczyk, the Court held that when an employee brings a collective action under the Fair Labor Standards Act (FLSA) against an employer, and the employer makes an offer of judgment to the employee under Federal Rule of Civil Procedure 68 prior to class certification, if such offer fully settles the employee’s individual claim, the collective action becomes moot as well.

In this case, Symczyk, a nurse, brought a collective action on behalf of herself and “other employees similarly situated” and alleged that the medical center violated the FLSA by automatically deducting 30 minutes of time worked per shift for meal breaks for certain employees, even when the employees performed compensable work during those breaks.  When Genesis Healthcare answered the complaint, they simultaneously served upon Symczyk an offer of judgment under Rule 68.

The District Court found that this offer of $7,500 provided Symczyk a complete relief on her individual damages claim, and, since no other individuals had joined her lawsuit, the case was rendered moot.  The Third Circuit Court of Appeals reversed the District Court and held that while the individual claim had become moot, the collective action had not.  The Court explained that allowing defendant employers to “pick off ” named plaintiffs with strategic Rule 68 offers before class certification, would frustrate the goals of collective action under the FLSA.

The Supreme Court, however, reversed the Third Circuit Court of Appeals and found that where a judgment offer under Rule 68 completely satisfies the named employee’s individual claim, and the class has not yet been certified, both the individual claim and the collective actions are rendered moot.


Now, anytime an employee brings a collective action under the FLSA against an employer, all the employer has to do to get the collective action dismissed, is to make a Rule 68 judgment offer prior to the class certification, and the collective action will be mooted, if the district court finds that the amount of the judgment offer fully satisfies such employee’s individual claim.  Note, however, that the federal circuit courts are split about the question the Supreme Court did not decide: whether an unaccepted offer of judgment moots the named plaintiff’s FLSA claim (and thus the collective claim). The four dissenting members of the Court said “no.”  The Rule 68 offer strategy will work only in those judicial circuits that find an unaccepted offer of judgment to moot the claim.

The Court’s decision makes it more difficult for employees to bring the FLSA collective actions because they are now forced – prior to class certification – to either identify a sufficient number of class members or claim a sufficiently large amount of damages so that the employer is not willing to make a Rule 68 offer or the employer’s offer is not large enough to satisfy all the individual claims.

The Court specifically pointed out that the judgment offers under Rule 68 might not work in class actions governed by Federal Rule of Civil Procedure 23.  Thus, employees might want to try to bring lawsuits that allege both a collective action under FLSA as well as Rule 23 class actions, or bring only state-law claims as class actions.

It will be interesting to see if, as a result of this decision, the Congress attempts to amend the FLSA to close the loophole created by Rule 68 offers that many employers are now sure to use to dismiss collective actions brought under the FLSA.

For more information, contact Leiza Dolghih.

Your Dog Might Be Worth Less Than Your IPhone

In a long-awaited decision in Strickland v. Medlen, the Texas Supreme Court ruled that pet owners can be compensated only for their animal’s market worth – not their sentimental value – even when a pet’s death is caused by somebody’s negligence. So, for those owners who have adopted no-breed mutts, such market value might be less than the cost of a new cellphone.

The facts of Strickland, much publicized in the media, were such:  the Medlens’ dog, Avery, escaped from their backyard and was picked up by animal control.  The Medlens went to the animal shelter to retrieve Avery, but did not have enough money to pay the fees. They were told to return a week later and a “hold for owner” tag was placed on Avery’s cage. Several days after the tag was placed, Carla Strickland, a shelter employee, put Avery on the list of dogs to be euthanized and he was put down. When the Medlens returned for their dog, they learned of his unfortunate fate. The Medlens then sued Strickland for negligence, claiming damages to compensate them for the unique sentimental or intrinsic value that Avery had.

Texas has long recognized that dogs are considered personal property. Typically, you cannot recover emotional damages for destruction of personal property – only the market value.  However, where personal property is one-of-a-kind or irreplaceable and carries with it a sentimental value (e.g., old family photographs or heirlooms that  have little market value), the damages for the destruction of such property might take into consideration the “feelings of the owner.”  The Medlens argued that this body of law allowed them to recover sentimental value associated with their dog.  The trial court rejected their argument, but was reversed by the Second District Court of Appeals. Strickland appealed.

On appeal to the Texas Supreme Court, the Texas Veterinary Medical Association, submitted an amicus curiae brief to the Court arguing that “awarding sentimental damages for the death of an animal may ultimately harm pets by driving up the basics costs of pet ownership placing it out of reach for some.”  Additionally, Texas Municipal LeagueTexas City Attorneys Association, and City of Arlington submitted a joint amici curiae brief arguing that recognizing sentimental value damages arising out of pets’ deaths would elevate the duties of parties who deal (voluntarily and involuntarily) with other people’s pets, and the associated costs will be passed on to taxpayers and pet owners.  American Kennel Club, Cat Fanciers’ Association, Animal Health Institute, American Veterinary Medical Association, National Animal Interest Alliance, American Pet Products Association, and Pet Industry Joint Advisory Council also filed a joint amici curiae brief arguing against allowing emotion-based damages for pet deaths because of the impact it would have on the costs associated with pet care.  Even Texas Civil Justice League, a non-profit association of Texas businesses, health care providers, and professional and trade associations, chimed in with its own amicus brief reiterating the same arguments.

After considering the Medlens’ and Strickland’s arguments, as well as the amici curiae briefs, the Texas Supreme Court reversed the Court of Appeals and held that non-economic damages rooted solely in an owner’s subjective feelings about the dog were NOT allowed under Texas law.

The Court noted that while “losing man’s best friend is undoubtfully sorrowful,” dog owners cannot recover emotion-based damages for their loss even when their companions are negligently killed.

WHAT DOES THIS MEAN for DOG OWNERS:  If your beloved Buddy runs away from the dog daycare and gets run over by a car because an employee forgot to lock the door, or your vet prescribes Buddy a wrong medication that causes his death or he botches Buddy’s surgery, or (insert a multitude of negligent pet care scenarios, including the one in Strickland), all you can recover as the pet owner is the market value of your dog.

If it’s a pure-bread and you have a receipt for his/her purchase, you can probably recover the purchase cost.  If it’s a trained dog that provides certain services, you can probably recover the value of such services.  However, if it’s “just” a family mutt, with no recognized pedigree or special skills valued in the market, you might be getting next to nothing in damages from a pet care provider, even if s/he were found negligent.

WHAT DOES IT MEAN for PET CARE FACILITIES.  The law remains at status quo. Nothing will change until Texas passes a statute akin to the wrongful death statute that allows people to recover emotional damages for deaths of their immediate relatives.  Given the amount of amici curiae briefs filed in this case and the lobby interests of the pet care industry, a passage of such statute in the near future is highly unlikely.

For more information, contact Leiza Dolghih.

Can You Fire or Get Fired for Statements on Facebook, etc.? (Social Media – Part II)

In the last couple of years, many employers have been adding Social Media policies to their Employee Manuals, often prohibiting employees from discussing all company matters publicly or from disparaging managers, co-workers, or the business itself online.  A violation of these policies has often been cited as a firing offense.  The question is how enforceable are these policies and how far can an employer go in regulating what its employees are saying about the business or the working conditions on sites such as Facebook or Twitter?

Thankfully, several opinions and memorandums issued by the National Labor Relations Board (The Board) provide some very useful guidance.  Here’s a quick summary of do’s and don’t of social media for both employers and employees:

1.  Discussions of working conditions, wages, or benefits are protected.  Under Section 7 of the National Labor Relations Act, all employees (not only the ones unionized)  have the right to “engage in … concerted activities for the purpose of collective bargaining or mutual aid or protection.” The Board considers that any social media policy that discourages workers from exercising their right to communicate with one another with the aim of improving wages, benefits or working conditions, are likely to be in violation of Section 7.

For example, in Hispanics United of Buffalo Inc. and Carlos Ortiz, 03-CA-027872, several employees posted angry comments criticizing one of the other employee’s statements that they were not doing their work.  All five were fired.  The Board ordered their reinstatement and held that the employees were united by common cause, and engaged in a concerted activity for the “purpose of mutual aid or protection” as allowed by Section 7.”

2.  Personal venting or rants are NOT protected. The Board has previously found that an employer can fire an employee for offensive and inappropriate Twitter postings that do not involve protected concerted activity.  See The Board’s Advice Memorandum to Arizona Daily Star, 28-CA-23267.  In this case, a police reporter kept making distasteful comments about Tucson’s homicide rates, criticized another department at his newspaper, and called other media people “stupid” – all from his Twitter account linked to Arizona Daily Star.  The Board found that the employee’s “conduct was not protected and concerted: it did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.”  Thus, the newspaper was within its rights to fire him.

3.   Disclosure of confidential information or trade secrets is NOT protected.  An employer can prohibit employees from disclosing company’s trade secrets in social media.   However, employees still retain the right to discuss their wages, workplace conditions, or employees’ or company performance under Section 7. See Point 1 above.

4. Prohibition of colorful language, expletives, distasteful remarks (also known as “Courtesy Clause”) is unlawful.  The Board has held that courtesy clauses violate the National Labor Relations Act because they may be construed to restrict employees’ rights to publicly criticize their employer.  See Karl Knauz BMW, Knauz Auto Group, 13-CA-046452.  Therefore, while, an employer might find some of its employees’ comments distasteful or rude, as long as such comments are part of a concerted activity, they are lawful and cannot be used as grounds for termination.

5.  Employee opinions are protected even if factually wrong.  The Board’s view is that as long as the purpose of a social media discussion is to come to a collective understanding or action, employees should be able to express their opinions, even if their statements are not entirely factually correct.

6.  Harassing, violent, abusive, or malicious statements are NOT protected.  Employers always retain the right to prohibit sexual harassment, workplace violence and threats of violence, and abusive or malicious activity, and should include such clause in their social media.  However, the clause should be narrowly drafted so that it does not discourage or “chill” the protected activity.

BOTTOM LINE for Employers:

1.   Have a written social media policy. Some examples can be found here.

2.  Make sure the policy is narrowly drafted and does not prohibit or discourage the employees’ right to discuss their work conditions, wages, and benefits or engage in other concerted activities.  Use the memorandums issued by The Board as your guide.

BOTTOM LINE for Employees:

Keep in mind that Texas is an at-will state of employment, which means that an employer can fire an employee at any time, for any reason (except an illegal one). Posts that are not related to the place of employment or work duties, are not protected under Section 7 and can be used by an employer as a lawful cause to fire an employee.

For my previous post regarding Social Media, click here.

For more information, contact Leiza Dolghih.

Facebook – It’s not Just for Fun Anymore (Social Media – Part I)

During 2012, the country has been abuzz with dozens of statutes and cases dealing with social media (Facebook, Twitter, Linked-In., etc.) A new body of law is emerging, and unless you’ve kept close tabs on it, it can be very confusing, especially, considering that different states and different jurisdictions treat some of the same issues quite differently.

I expect that we’ll see an exponential increase in cases dealing with social media in 2013, which is why I would like to dedicate the next several posts to discussing where Texas currently stands on social media legal issues, in comparison to other jurisdictions.

As far as legislation is concerned, Texas is currently trying to catch up with some other states that have already passed statutes dealing with social media.

Senate Bill 118 – A Proposed Amendment to the Labor Code 

Last January, Texas senator Juan Hinojosa (D-Corpus Christi – McAllen) introduced a bill that would make it unlawful for employers to require or request that an employee or applicant for employment “disclose a user name, password, or other means for accessing a personal account or the employee or applicant …”

If Texas passes Senate Bill 118, it would join four other states – California (A.B. 1844), Illinois (H.B. 3782), Maryland (H.B. 964/S.B. 433), and Michigan (H.B. 5523) – that have already enacted similar legislation last year.

Additionally, California (S.B. 1349), Delaware (H.B. 309), Michigan (H.B. 5523), and New Jersey (A.B. 2879) have prohibited higher education institutions from requiring their students to give up their passwords.

Several other states have introduced similar bills in 2012 and 2013, but have not yet passed them: Massachusetts (H.D. 4323), Minnesota (H.F. 2963), Missouri (H.B. 2060), New York (A.B. 9654), Ohio (S.B. 351), Oregon (H.B. 2654), Pennsylvania (H.B. 2332), South Carolina (H.B. 5105), and Washington (S.B. 6637).

Finally, in February, several house representatives in U.S. Congress reintroduced the bill (H.R. 537) titled “Social Networking Online Protection Act” (SNOPA), which would prohibit employers and higher education institutions from requiring their employees and students’ social media passwords.

2.   HB 1989 – A Proposed Amendment to the Texas Civil Practice & Remedies Code

This month, Texas state representative Jeff Leach (R-Plano) proposed a bill that would allow sheriffs, process servers and other legal entities the right to serve legal papers over social media accounts, including Facebook.  As currently drafted, the bill would become effective on September 1, 2013.

If Texas House Bill 1989 is enacted, it would make the Lone Star State the first in the United States to allow for service of process via social media as an alternative means of service.  The courts in other jurisdictions have already found such service to be valid in certain circumstances.  For example, the Southern District Court of New York in Federal Trade Commission v. PCCARE247, Inc., found that service via Facebook was acceptable as long as the serving party could establish that the Facebook account indeed belonged to the person/entity being served.  Outside the United States, Australia, Canada,  New Zealand, and United Kingdom have all allowed service via Facebook or Twitter.   Texas could be next.

UPDATE (July 2013):  The Legislative Session ended on May 27, 2013.  HB 318/SB 118 was passed by the House, but then died.  HB 1989 was not passed by either chamber.

For more information, contact Leiza Dolghih.

Quick Recap of 2013 Tax Changes

Several key tax provisions took effect on January 1, 2013, as part of the American Taxpayer Relief Act of 2012:

Tax Rate Increases

  • Top long term capital gains and qualifying dividends tax rate increased from 15% to 20% – or 23.8% if you include the new 3.8% Medicare tax on investment income (this is a 59% increase).
  • The estate and gift tax exclusion was retained at $5+ million (indexed for inflation), but the top estate and gift tax rate was increased from 35% to 40%.

New Medicare Surtax 

  • Earned income (wages & self-employed income) in excess of $200,000 (for single people) and $250,000 (for married couple) will be subject to 0.9% Medicare tax.
  • Investment income of taxpayers whose Adjusted Gross Income is over $250,000 (for joint filers) will be subject to the new 3.8% Medicare surtax.
  • Taxable gains on residences (gains over $250,000 for individuals and $500,000 for joint filers) will also be subject to 3.8% Medicare surtax.
  • Employer’s part of the Medicare tax remains unchanged.


  • The Section 179 expense deduction for 2013 is $500,000 and additional 50%  first-year bonus depreciation.  These deductions, however, are scheduled to be greatly reduced in 2014.
  • The gift tax exclusion per person increased to $14,000.

For more information, see KPMG’s website here or contact Leiza Dolghih.

The U.S. Supreme Court Renders A Pro-Business Class Action Ruling

Today, the U.S. Supreme Court rendered a decision that should make any business owner facing a class action breath a little easier.   The Court’s decision in Standard Fire Insurance Co. v. Knowlesmakes it easier for defendants to move class actions from state courts to federal courts, which are generally known to be less favorable to plaintiffs and which provide less of a home-court advantage to plaintiffs’ lawyers when it comes to recovery of attorneys’ fees associated with class actions.

Under the Class Action Fairness Act (CAFA), any class action with aggregated damages over $5 million dollars, can be brought in federal court.  To avoid being in federal court, plaintiffs often allege that they are seeking damages of less than $5 million.   Following the usual practice, the named plaintiff in Knowles submitted an affidavit stipulating that the class members were not going to seek at any time during the case damages exceeding $5 million.  The plaintiff then argued that the federal court had no jurisdiction over the case because of the stipulation, even though absent the stipulation the damages would have exceeded the threshold amount.

The U.S. Supreme Court held that such stipulation was not enough to defeat the transfer of the case from the state to federal court and that the federal court had to assess for itself whether the damages exceeded the CAFA threshold.  The Court reasoned that the stipulation did not guarantee that the damages would stay below $5 million because the named plaintiff could not legally bind prospective class members to a certain amount in controversy before the class was certified.

Sure, the Court clarified that a stipulation that is binding on all class members can be sufficient to avoid a transfer to federal court.  However, from a practical stand point, this means that a plaintiffs’ attorney would have to certify the class first, then file a stipulation, and then transfer the case back to the state court, which at that point – months or even years after filing the case in federal court – might be impossible or impractical to do, or simply not worth it.

For more information, contact Leiza Dolghih.

Non-Compete Agreements in Texas: The Devil is in the Details

Last week, the Fifth Court of Appeals of Texas in U.S. Risk Insurance Group, Inc. et al. v. Woods reminded us again that a non-competition agreement must be reasonable and must include a correct entity, or it will not be enforceable.

In Woods, an insurance broker signed an Employment, Confidentiality and Non-Compete Agreement (Agreement) when he began working for U.S. Risk Brokers, Inc. (USR).  Although Woods was working for and soliciting insureds on behalf of USR, the Agreement was between Woods and USR’s holding company – U.S. Risk Insurance Group, Inc. (USRIG). USR was not a party to the Agreement.

The Non-Competition provision in the Agreement stated the following:

Additionally, for a period of ninety (90) days after the last day of Employee’s employment following Employee’s voluntary resignation from the Company provided that the Company elects to continue the Employee’s salary during the ninety (90) day period, Employee agrees that Employee shall not become associated with, employed by, or financially interested in any business operation which competes in the business currently engaged in by the Company or any of its subsidiaries or affiliates.  The phrase “business currently engaged in by the Company” includes, but is not limited to, the types of activities in which the Company was engaged during Employee’s tenure .

When Woods resigned and went to work for a USR’s competitor, USR filed a lawsuit against him alleging the breach of the Agreement.

The Fifth Court of Appeals found that the Non-Competition provision was unenforceable against Woods because it was unreasonable as to the scope of the restrained activity.  Not only did it prohibit Woods from engaging in the type of business activity that he had performed for USR, but it prohibited him from engaging in any business that USRIG, the holding company, engaged in.

The Court of Appeals also held that the non-solicitation clause in the Agreement was unenforceable by USR because the Agreement was between USRIG and Woods, and USR was not a party.   Thus, because the non-solicitation clause only prohibited Woods from soliciting “insureds” of USRIG, he was free to solicit any customers of USR.

CONCLUSION:  When drafting or enforcing a non-compete in Texas, remember these simple rules:

1.  The limitations as to time, geographic area, ans scope of activity restrained must be reasonable.

2. When applied to personal services occupation, a restraint on client solicitation is overbroad and unreasonable if it extends to clients with whom the employee had no prior dealings during his employment.

3. An industry-wide bar is unreasonable.

4. Make sure the non-compete agreement is with the correct entity or the entity is defined broadly enough to include its affiliates who employ the covered employees.

For more information, contact Leiza Dolghih.

Whistleblowing – The Right and the Wrong Way to Do It

The Texas Whistleblower Act protects public employees who make good faith reports of violations of law by their employer or co-workers to an  “appropriate law enforcement authority.”  Under the Act, an employer may not suspend or terminate the employment, or take other adverse personnel action against, a public employee who makes a report under the Act.

The Texas Supreme Court recently ruled that an “appropriate law enforcement authority” does not include employee’s supervisor, even if that supervisor ensures internal compliance with the law within the organization.  Thus, while “[o]ther states’ whistleblower laws accommodate internal reports to supervisors; Texas law does not.”  In that regard, the Texas Whistleblower Act is very similar to the Dodd Frank Wall Street Reform and Protection Act, which also requires employees to make reports to an external entity, rather than internally.

In University of Texas Southwestern Medical Center at Dallas v. Larry M. GentilelloDr. Larry Gentilello, a professor of surgery at the University of Texas Southwestern Medical Center at Dallas, had complained to his supervisor, Dr. Robert Rege, that trauma residents in Parkland Hospital in Dallas were treating and operating on patients without an attending physician’s supervision, in violation of Medicare and Medicaid requirements and procedures.  After Dr. Gentilello was stripped of his faculty chair positions, he filed a whistleblower suit that alleged that the demotion was in retaliation for reporting the center’s violation of federal rules.

The Texas Supreme Court reasoned that just because the department chair could discipline employees who violated Medicaid/Medicare requirements, he did not qualify as an appropriate law enforcement authority under the Act.  Thus, Dr. Gentilello’s report to Mr. Rege was insufficient to afford him protection against retaliation under the Act.   The supervisor’s purely internal authority was not law enforcement but law compliance — in other words, the supervisor was only capable of ensuring that the medical center followed federal directives.  This bare power to urge compliance or pure noncompliance did not transform him into an “appropriate law enforcement authority” as defined in the Act.

MORAL OF THE STORY? If you want the protection of the Texas Whistleblower Act, blow the whistle to those authorities that either issue or enforce laws or investigate or prosecute their violation (hint: they are likely to be outside the organization).  Reporting a violation to an internal supervisor, with a few very narrow exceptions, will not afford the protection against retaliation under the Texas Whistleblower Act.

For more information, contact Leiza Dolghih.

Last Minute Changes to the Expedited Trial Rules in Response to Comments

After receiving hundreds of public comments regarding the expedited trial rules, the Texas Supreme Court made some changes to the Texas Rule of Civil Procedure 169 (final version here).

Some of the comments criticized the draft rules’ mandatory nature and opposed the prohibition of alternative dispute resolution in expedited actions; other comments raised concerns with the limits on discovery and trial time.  (Previous coverage at The New Expedited Trial Rules: What to Expect).

The Texas Supreme Court kept the mandatory nature of the rules, but made the following changes to TRCP 169 before giving its final approval:

1.  Lawsuits filed in Justice Courts are now exempt from the expedited trial procedure.

2.  The courts can continue an expedited lawsuit twice, not to exceed 60 days.

3.  The trial time has increased from 5 to 8 hours per side, and the parties can extend that time up to a maximum of 12 hours per side for good cause.

4.  The judges can now refer cases to an alternative dispute resolution (ADR) procedure unless the parties have agreed not to engage in ADR.   The ADR cannot exceed a half-day in length, and its cost cannot exceed twice the amount of the applicable civil filing fees.  It must be done at least 60 days before trial.

5.  Finally, in comments to TRCP 169, the Texas Supreme Court offered more guidance on the factors that a judge should consider in determining whether a good cause exists for removal of a case from the expedited process, including:

a.   whether there are multiple claimants seeking damages against the same defendant totaling more than $100,000;

b.   whether a defendant’s counterclaim exceeds $100,000; and

c.   the number of parties and witnesses, the complexity of the legal and factual issues, and whether an interpreter is necessary.

Texas Supreme Court Justice Nathan Hecht explained that the Court will monitor statistics gathered by the Texas Office of Court Administration about the cases that go to trial under the expedited trial rules, and might amend the rules in the future depending on what the statistics show about their effectiveness.

For more information, contact Leiza Dolghih.

Important Employment Law Cases to Follow in 2013

Vance v. Ball State University (7th Cir. 2011) – Who is a “Supervisor” under Title VII? 

The U.S. Supreme Court will resolve a split between federal appellate courts regarding the definition of a “supervisor” for purposes of liability under Title VII. Specifically, the Court will decide whether “supervisor” under Title VII includes only those employees who have the power to “hire, fire, demote, promote, transfer, or discipline” or whether it includes any employee who has “the authority to direct and oversee the harassed employee’s daily work.”

The decision is of tremendous importance to employers, who are strictly liable for harassment inflicted by supervisors, but are liable for harassment by employees only when they were negligent  in either discovering or remedying such harassment.   If the Supreme Court expands the definition of “supervisor” to include anybody who has the authority to direct and oversee an employee’s daily work, the potential for strict liability for employers will expand significantly.

D.R. Horton Inc. v. NLRB (NLRB, 2012) – Are Class Action Waivers in Arbitration Agreements Unlawful? 

The Fifth Circuit is going to review the decision by the NLRB in D.R. Horton  that an arbitration agreement requiring employees to waive “as a condition of employment” their right to bring a joint, class or collective action violated Section 8(a)(1) of the National Labor Relations Act, which protects the rights of employees to engage in concerted, protected activity.  The controversial NLRB decision called into question the growing practice of including class action waivers in employee arbitration agreements and is likely to reach the U.S. Supreme Court.

This is a significant case for employers because it impacts an employers’ ability to contract with its employees up front, as a condition of employment, over the issue of whether its employees may bring class or collective actions, which are notoriously expensive to litigate, expensive to settle, and financially risky to try in court.

Genesis HealthCare v. Symczyk (3rd. Cir. 2011) – Does Offering to Pay the Lone Plaintiff’s FLSA Claim Moot the Lawsuit Before Other Class Members Can Be Added? 

In this important Fair Labor Standards Act (“FLSA”) case, the U.S. Supreme Court will resolve another split among the federal appellate courts when it determines whether an FLSA collective action becomes moot after the named plaintiff receives an offer of judgment that provides full relief.   The Third Circuit Court of Appeals held that such an offer does not moot a putative action.  By contrast, the Ninth and Eleventh Circuits have held that a full offer of judgment to the named plaintiff does moot a putative collective action.

The Court’s resolution of this circuit split is expected to impact an important tool that employers have relied upon in an effort to confront the recent deluge of collective wage-and-hour litigation – the payoff of the plaintiff’s claim before a class action is certified.  The decision could greatly limit the ability of plaintiffs to use discovery to determine the existence of other similarly situated individuals, and will determine whether defendants can avoid a collective action by satisfying the claims of individual plaintiffs before they can join other members of their class.

University of Texas Southwestern Medical Center v. Nassar (5th Cir. 2012) – What is the Causation Requirement in a Title VII Retaliation Claim? 

The U.S. Supreme Court has agreed to decide whether Title VII’s retaliation provision, and similarly worded statutes, require a plaintiff to prove a more arduous but-for causation – that an adverse action would not have been taken by an employer but for a retaliatory motive – or instead require proof only that the employer had a mixed motive, meaning that a retaliatory motive was one of several reasons for the adverse employment action.  The Court’s decision is expected to provide much-desired clarity on the standard of proof.

For more information, contact Leiza Dolghih.