Use of employee biometric data – including fingerprints, eye scans, voiceprints, and facial scans – continues to be a popular, yet legally risky, proposition for employers. Several states and municipalities have laws that specifically govern the use of biometric data, the highest profile of which is the Illinois Biometric Information Privacy Act (BIPA).
Continue Reading Amidst Uncertainty Surrounding the Scope of BIPA Liability, Hyatt Settles Employee Biometric Data Class Claims for $1.5 Million

Since the Supreme Court’s 2018 Epic Systems ruling, employers increasingly rely on arbitration agreements for more efficient resolution of both single plaintiff and class action claims.  Prolonged judicial review of arbitration awards, however, can dilute that efficiency.  As a result, some employers include waivers of judicial review, in whole or in part, in their arbitration agreements.

But are such waivers permissible?  In a recent decision, the Fourth Circuit said “yes” as it relates to appellate review. 
Continue Reading Fourth Circuit Holds that the Federal Arbitration Act Does Not Prohibit Parties from Waiving Appellate Review

Uber Technologies, Inc. has been sued in a class action lawsuit alleging the company’s use of criminal background checks discriminates against Black and Latinx drivers. The complaint, filed in the U.S. District Court for the Southern District of New York on April 8, challenges Uber’s “unlawful use of criminal history to discriminate against its drivers in New York City as well as its brazen noncompliance with human rights and fair credit laws.”
Continue Reading Gig Employer Hit with Background Check Class Action

For over 30 years, most district courts throughout the country have used a two-step conditional certification process to govern certification of collective actions under the Fair Labor Standards Act (FLSA).  But in its recent and game-changing opinion, the Fifth Circuit rejected that two-step process and laid out a stricter framework for FLSA collective actions. 
Continue Reading Fifth Circuit Rejects Two-Step FLSA Certification Process

The Federal Reserve anticipates an approximate two percent reduction in unemployment by June 2021, envisioning rapid mass-hiring by employers once governments lift the more stifling COVID-19 restrictions.  Businesses requiring pre-employment background checks may be uniquely exposed to liability under the Fair Credit Reporting Act if minor mistakes are amplified by mass-hiring events.
Continue Reading Two Recent Ninth Circuit Cases Provide Guidance on FCRA Disclosure and Authorization Form Requirements

An Alabama federal judge granted AutoZone’s request to dismiss nearly 500 current and former store managers from a nationwide collective action that the national auto-parts chain had misclassified them as exempt under the Fair Labor Standards Act
and denied them overtime, holding those plaintiffs had missed the three-year statute of limitations and that plaintiffs had failed to establish equitable tolling should apply to save their claims.
Continue Reading The Doctrine of Equitable Tolling Won’t Save Hundreds of Store Managers from Dismissal in AutoZone’s Nationwide Overtime Suit

This month, the Southern District of Florida declined to certify a nationwide class of Denny’s servers alleging the restaurant chain had violated the minimum wage and tip credit provisions of the Fair Labor Standards Act on the basis that the named plaintiff failed to provide enough evidence that the servers were similarly situated.
Continue Reading Proposed Nationwide Class of Denny’s Restaurant Servers Denied Certification in FLSA Action

A federal district court in Florida recently declined to conditionally certify a nationwide collective action brought under the Fair Labor Standards Act because the plaintiff did not show sufficient evidence that she was similarly situated to other restaurant managers who wanted to join.
Continue Reading Federal Court Denies Conditional Certification of Collective Action Involving Restaurant Managers

A hotly contested ruling in a Fair Credit Reporting Act class action case will soon be appealed to the Supreme Court of the United States.  The Ninth Circuit in Ramirez v. TransUnion LLC, Case No. 17-17244, recently granted the parties’ Joint Motion to Stay the Mandate, seeking to stay the Ninth Circuit’s mandate pending TransUnion’s filing of a petition for writ of certiorari in the Supreme Court.  The Motion to Stay comes soon after the court denied TransUnion’s Petition for Rehearing or Rehearing En Banc regarding the Ninth Circuit’s decision in Ramirez v. TransUnion LLC, 951 F.3d 1008 (9th Cir. 2020).
Continue Reading TransUnion to Seek Supreme Court Review After Ninth Circuit Finds Class Members Had Standing and Partially Upholds Punitive Damages Award

A recent Fifth Circuit opinion held that a company’s arbitration agreement did not prevent employees from pursuing their claims as a collective arbitration, rather than individual claims.  As class claims related to COVID-19 begin to surge, the opinion provides occasion for companies to review their arbitration agreements to ensure that the companies’ aims are clearly drafted.
Continue Reading As COVID-based Class Actions Loom, Fifth Circuit Provides Reminder for Arbitration Agreements and Class Action Waivers