Third Thursday –
Crowell & Moring’s
Wage Hour Briefing
May 24, 2012
Mark Romeo
Shane Sagheb
Tom Gies
If you are having trouble hearing the audio portion
of the presentation, please call 1-877-211-3621.
© Crowell & Moring 2012
THIRD THURSDAY
Crowell & Moring’s Wage Hour Briefing
MEET THE TEAM:
Mark
Romeo
Orange County
Christopher
Calsyn
DC.
Thomas
Gies
DC
Wendy
Sugg
Orange
County
Andrew
Bagley
DC
Ira
Saxe
NYC
© Crowell & Moring 2012
Trina
Fairley-Barlow
DC
Shane
Sagheb
LA
Life after Brinker
Shane Sagheb
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Ten Best Practices in Response to Brinker
1. Comply
A. Meal Break rules
B. Rest Break rules
2. Train and Refresh
3. Communicate, Communicate, Communicate
4. Document
5. Adapt to Schedule Changes
© Crowell & Moring 2012
Ten Best Practices in Response to Brinker
6. Obtain Written Waivers from employees who
work no more than 6 hours
7. Designate Neutral Party re Complaints and
Emphasize No Retaliation
8. Use Wage Statements to inform
9. Audit Time Records
10.Obtain Written Agreement for “on duty” meal
breaks
© Crowell & Moring 2012
The Ongoing Debate about
Class Action Arbitration
Mark A. Romeo
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THE ISSUE: CAN YOU HAVE A
CLASS ACTION WAIVER IN A
WAGE AND HOUR CASE?
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WHY IS IT IMPORTANT?
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The Key Components of Concepcion
» Overruled the California Supreme Court decision
in Discover Bank.
» Clarified that Section 2 of Federal Arbitration Act
(“FAA”) permits agreements to arbitrate to be
invalidated by “generally applicable contract
defenses” but not by defenses that apply only to
arbitration or that derive their meaning from the
fact that an agreement to arbitrate is at issue.”
© Crowell & Moring 2012
What Some Courts Are Saying about Class Action
Waivers in Wage and Hour Litigation after Concepcion
» LaVoice v. UBS Financial Services, Inc., 2012 WL
124590 (S.D.N.Y. Jan. 13, 2012)
» Zachary Morvant v. P.F. Chang’s China Bistro, Inc.,
2012 WL 1604851 (N.D. Cal. May 7, 2012)
» Hobson v. Murphy Oil USA, Inc., _ F.Supp. 3d _ (S.D.
Ala. April 26, 2012)
» Sutherland v. Ernst & Young LLP, 2012 U.S. Dist. LEXIS
5024 (S.D.N.Y. January 17, 2012)
» Mayers v. Volt Management Corp., 203 Cal.App.4th
1194 (Cal. Ct. App. Feb. 2, 2012)
© Crowell & Moring 2012
What Do You Do about the NLRB?
» Issue: Whether class action waivers are invalid
in the employment context because the NLRA
protects an employee’s right to bring a collective
action
» Examples:
• Zachary Morvant v. P.F. Chang’s China Bistro, Inc.,
2012 WL 1604851 (N.D. Cal. May 7, 2012)
• Herrington v. Waterstone Mortgage Corp., 2012 WL
1242318 (W.D. Wis. Mar. 16, 2012)
© Crowell & Moring 2012
What Does It All Mean?
» Class action waivers, accompanied by fair
arbitration rules, are surviving many legal
challenges
» Procedural fairness/ease of arbitration is still key
» Some legal issues remain to be resolved
© Crowell & Moring 2012
Best Practices for Maximizing Enforceability
of Arbitration Agreements
» Employer pays arbitration costs (except for equivalent of
court filing fee)
» Allow for full remedies under applicable law
» Set out the arbitration rules
» Make class action waiver explicit and prominent
» Do not reserve right to modify agreement unilaterally (or
limit such right to future claims only)
» Make the arbitration agreement easy to understand for
laymen
© Crowell & Moring 2012