“Sometimes surrender is the best option.” That is how Judge Raymond J. Dearie of the Eastern District of New York begins his opinion in Anjum v. J.C. Penney Co., Inc., before denying J.C. Penney’s motion to dismiss a putative Fair Labor Standards Act (FLSA) collective action based on the company’s offer to pay the claims of four named plaintiffs with offers of judgment under Federal Rule of Civil Procedure 68—a strategy often referred to as “picking off.” Even though the court rejected J.C. Penney’s picking off attempt in this case, the judge’s opinion in Anjum recognizes the validity of this tactic and provides some practical lessons for defense counsel looking to successfully pick off an FLSA collective in the Second Circuit.
Lisa Lupion, an associate in Orrick’s New York office, is a member of the employment law group. Orrick’s Employment Law and Litigation group was recently named Labor & Employment Department of the Year in California by The Recorder, the premier source for legal news, in recognition of their significant wins on behalf of leading multinational companies on today’s most complex and challenging employment law matters.
Ms. Lupion’s practice focuses on employment litigation and counseling. She has experience litigating a broad range of employment issues, including discrimination, harassment, wrongful discharge, compensation and wage-and-hour claims before federal and state courts, AAA, JAMS and FINRA. She frequently represents clients in state and federal administrative agencies. Ms. Lupion has also defended class and collective actions under state and federal laws, including claims for overtime, minimum wage, meal and rest break penalties, and expense reimbursements.
Ms. Lupion regularly advises clients on a variety of employment-related issues, including human resources policies and procedures, offer letters, severance agreements and employee termination. As part of her counseling role, she creates and conducts training programs for her clients. Ms. Lupion also has significant experience conducting internal investigations and audits.
Prior to joining Orrick, Ms. Lupion served as a law clerk to the Hon. Peter Leisure in the United States District Court for the Southern District of New York, and she was an associate at Proskauer Rose LLP in New York.
On September 9, 2014, Governor Jerry Brown signed AB-2053, which mandates that certain California employers provide workforce bullying training in addition to already-required sexual harassment training and education. As a result, many California employers need to be prepared to expand their training programs to address abusive conduct beginning on January 1, 2015.
A district court in New York dismissed the putative collective action filed by a contract attorney who performed document review for Skadden, Arps, Slate, Meagher and Flom LLP (“Skadden”) for fifteen months. See Lola v. Skadden, Arps, Slate, Meagher & Flom LLP. Under the Fair Labor Standards Act (“FLSA”), an employee is exempt from overtime as a professional employee if he or she is “the holder of a valid license . . . permitting the practice of law” and “who is actually engaged in the practice thereof.” 29 C.F.R. § 541.3. The named plaintiff and proposed class representative, David Lola, was a licensed attorney, and, therefore, the dispositive question was whether he was practicing law such that he qualified for the exemption.
An increasing number of cities, counties and states have passed laws restricting employers from inquiring about a job applicant’s criminal background, giving momentum to the “ban the box” movement. The term “ban the box” refers to questions on an employment application that ask a job applicant about past convictions. Proponents of the movement say that such legislation will help remove unfair employment barriers to job applicants with criminal histories.
For forty hours, five days a week, for three years, Jayquan Brown provided services to New York City Department of Education’s Banana Kelly High School. Brown, who was a graduate of the school, was unable to secure a paid job after graduation and began an unpaid “volunteer internship” with the school. In that role, Brown assisted with student conflict resolution, lunch supervision, detention, parent contact, student escort, answered the telephone and handed out report cards and progress reports. He testified that he accepted the position with the goals of building his resume, modeling himself after one of his mentors—the school’s director of student life, and helping “show the kids that we do care.” Read More
On May 12, the National Labor Relations Board issued a notice and call for amicus briefs to address whether the Board should maintain its existing joint-employer standard or adopt a new one. Notice and Invitation to File Briefs, Browning-Ferris Indus. of California, Inc., Case 32-RC-109684 (May 12, 2014). Read More
March, 2014, three powerful business groups urged the U.S. Supreme Court to consider an important issue at stake for employers in Mach Mining LLC v. Equal Employment Opportunity Commission—can courts review the adequacy of the Equal Employment Opportunity Commission’s (“EEOC’s”) conciliation efforts prior to filing suit? In Mach Mining, the Seventh Circuit held “no,” although six other circuits to address this issue have acknowledged an employer’s ability to raise failure to conciliate as an affirmative defense. If the Supreme Court grants Mach Mining’s February 25, 2014 petition for review, the ruling could have significant impact for employers facing potential litigation with the EEOC. Read More
Joining the ever growing list of opinions on the arbitrability of class claims, an NLRB Administrative Law Judge recently ruled that an arbitration agreement that did not expressly bar workers from bringing class or collective actions still violated federal labor law because the employer’s steps taken to enforce the agreement in court had the practical effect of doing so. Read More
As reported in prior blogs, the National Labor Relations Board (NLRB) has become increasingly active in attacking employer policies on the grounds that those policies chill employees’ rights to engage in concerted activity. In particular, the NLRB has been scrutinizing social media policies. Read More