In the employment law realm, missteps related to wage and hour compliance can create some of the largest financial risks and impacts for a company – mainly because such non-compliance can quickly lead to class or collective action lawsuits. Polsinelli’s attorneys have extensive experience successfully leading clients through all aspects of the wage and hour maze, including:

• Conducting due diligence
• Advising on compliance and performing audits
• Strategizing and defending litigation

Every class, collective, and multiplaintiff lawsuit is different. We accordingly identify an individualized, creative, and strategic approach to each matter. Case-definite strategies are guided by our in-depth knowledge of specific industries, legal developments, approaches the lawyers for employee-class cases use, and the latest enforcement trends at government agencies.

Litigation

Our litigators are creative and not afraid to try something new. As a result, we have successfully filed procedural and substantive motions to end or significantly limit class, collective, and multiplaintiff cases in their early stages. We have also successfully defeated and limited conditional and class certification, including on a nationwide basis, convinced employee attorneys to dismiss or disregard significant portions of their cases, filed preemptive dispositive motions, conducted effective class-based discovery, identified and collaborated with well-known expert witnesses, defended cases following final certification or decertification, and deployed successful trial and settlement strategies.

We work closely with clients to customize defense strategies that fulfill the client’s individual business needs and goals in a cost-effective and efficient basis. Each case is unique - strategy that worked in one case may not work in another. Our analysis includes evaluating the current claims to develop strategies for correcting any potential issues, which limits liability in the litigation at hand, and help employers avoid future claims. Our approach also includes a multifaceted defense strategy that has multiple options at each stage of class and collective litigation to ensure that all contingencies are covered no matter what happens. We view it as our duty to partner with our clients to make difficult litigation least disruptive as possible to their operations and business, provide strategies that make business sense, and provide realistic assessments so the client can make informed decisions, all while providing a vigorous defense. Claims that the Polsinelli wage and hour team have litigated include:

• Misclassification of exempt employees
• Independent contractor misclassification claims
• Off-the-clock claims
• Miscalculation of the regular rate for overtime purposes
• Tip credit issues (including 80/20 rule violations)
• Automatic lunch deductions
• Meal and rest break claims
• Donning and doffing type claims
• Claims for unpaid wages such as commissions and bonuses

Most importantly, our strategy is driven by our clients’ business goals and objectives. We fully and aggressively defend matters to conclusion, but also negotiate early resolutions to avoid extended litigation when desired. We arm our clients with the tools to make practical and effective business decisions and help our clients avoid future problems. We have significant experience representing companies in class and collective actions in the following industries:

• Health Care
• Gaming
• Retail
• Financial
• Food Service
• Technology
• Hospitality
• Sports & Entertainment
• Pharmaceutical
• Education
• Manufacturing
• Food Processing
• Transportation
• Delivery Services
• Media
• Sales
• Engineering

Wage & Hour/Class and Collective Actions Lawsuits

• Employee misclassification
• Meal period and rest break claims
• General off-the-clock activity, such as:
  • On-call time
  • Off-duty use of PDAs, cell phones, pagers, etc.
  • Travel time
  • Training time
  • Donning and doffing
  • Shift-change activities
  • Rounding of clocked times
  • Auto-deduction of meal periods
  • Other general pre-or post-liminary activities, including walk- and wait-time, equipment gathering, security procedures, computer booting up or downtime, etc.
• Tip-related claims, including tip credit notifications, tip pooling or sharing, credit card and service charges, etc.
• Piece or trip-rate claims
• Payroll deductions
• Fluctuating workweek claims
• Commission plans, bonuses (including miscalculation of the regular rate), and rights to benefits
• Private Attorneys General Act claims (California)

Non-Wage & Hour Lawsuits

• Race and gender promotion or glass ceiling claims
• Age discrimination claims related to reductions in force and release agreements
• WARN Act claims
• Equal pay, fair pay, and other compensation-related claims
• Claims based on performance management/promotion systems
• Failure to hire claims related to testing
• Overall systemic discrimination claims, including federal and state agency investigations of same

Lawsuits filed by the Equal Employment Opportunity Commission, Department of Labor, and other governmental agencies

Fair Credit Reporting Act Lawsuits

Procedural Issues

• Preemption issues based on analogous state laws
• Jurisdiction and venue issues based on improper jurisdiction or forum selection, improper inclusion of foreign defendants, etc.
• Enforcement of arbitration agreements
• Dismissal of class and collective action allegations