Use Of Statistical Evidence In Complex Wage Litigation
Adam T. Klein and Tarik F. Ajami. Statistical evidence has taken its place as a core class of evidence in complex employment cases. Yet despite the centrality of statistics in the field, there is precious little caselaw addressing the use of expert statistical evidence in complex wage-and-hour litigation. However, as a growing number of practitioners have recognized, class and collective wage-and-hour litigation is as well-suited or better-suited for the use of statistical experts as are Title VII and other employment actions.
Adam Klein Discusses Unpaid Intern Litigation, Wage-Hour Issues Related To Remote Connectivity And Employer Misclassification
Adam T. Klein, attorney at Outten & Golden LLP, is interviewed by Katarina E. Wiegele, of Bloomberg BNA for the FLSA Litigation Tracker, Litigation Q & A. Reproduced with permission from FLSA Litigation Tracker, (July 12, 2013). Copyright 2013 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
The Dodd-Frank Act's Whistleblower Provisions: The Act's Best Hope For Exposing Financial Wrongdoing
In this BNA Insights article, Outten & Golden attorneys Tammy Marzigliano and Cara E. Greene take a close look at these provisions and the effects of preceding laws, such as the Sarbanes-Oxley Act, to examine what their future impact might be. Bloomberg BNA, Workplace Law Report, 10/22/2010.
On Sept. 15, 2008, Lehman Brothers collapsed, sending shock waves through the financial services industry and portending the industry's broader meltdown. Less than two weeks later, Washington Mutual was seized by the federal government and placed into receivership. Over the next year, more than 100 banks folded, Americans saw $13 trillion in wealth evaporate, and massive securities fraud, like that committed by Bernie Madoff, shook investor confidence to the core. The housing market collapsed, the number of people out of work hit 15.6 million, and the federal deficit ballooned. America was in the midst of the Great Recession.
In response, on July 21, 2010, the federal government enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “act” or “Dodd-Frank Act”), which overhauls and strengthens federal oversight of the financial system. While it is impossible to know whether the financial meltdown could have been avoided had the act's provisions been adopted in 2007 instead of 2010, the question on everyone's mind is whether the Dodd-Frank Act will keep it from happening again. Only time will tell if it will have the desired and intended impact, but the act's whistleblower provisions attempt to ensure that in the future financial fraud and irregularities are exposed long before they corrupt the entire system.
Off-The-Clock Claims From The Employee's Perspective
Employment law attorney Adam T. Klein, and Sean Farhang. Chapter 8 from Compensation, Work Hours and Benefits: Proceedings of the New York 57th Annual Conference on Labor edited by Hirsch, Samuel Estreicher 05/05/2009
In this paper we discuss legal issues relevant to off-the-clock wage and hour claims. By “off-the-clock” claims we refer to claims alleging that the defendant failed to pay an employee for work time which was compensable under relevant wage and hour law. Our primary focus is application of the Fair Labor Standards Act (“FLSA”) to off-the-clock claims.
The Epidemic Of Employer Misclassification Of Employees As Independent Contractors Under The Fair Labor Standards Act, And The Courts' Response
Justin M. Swartz, and Mariko Hirose, and contributions by Piper Hoffman, 2009
The Fair Labor Standards Act (FLSA)’s compensation requirements, such as minimum wages and overtime pay, apply only to “employees.” Chao v. Mid-Atl. Installation Servs., Inc., 16 F. App'x 104, 105 (4th Cir. 2001). Employers can get around these requirements and lower their tax bills at the same time by classifying workers as “independent contractors” instead of “employees.” Employers classify as independent contractors many workers who do not meet the legal definition: the Department of Labor estimates that up to 30% of U.S. employers misclassify workers. Courts have found rampant violations across certain industries.
Justin Swartz and Rachel Bien, Section of Labor & Employment Law, American Bar Association, Vol. 35, Number 4, Summer 2007
Few doubt the merits of diversity in the workplace. Indeed, a host of organizational leaders from chief executive officers to top military brass have recently touted the importance of a diverse labor force. As a result, an entire industry has emerged, geared toward eradicating workplace inequality.
Many thoughtful ideas have made their way onto "best practices" lists that identify methods to increase the representation of historically underrepresented groups in corporations and firms. (See, e.g., Equal Employment Opportunity Committee Diversity Task Force web page, which links to several lists of "best practices," http://apps.americanbar.org/dch/comadd.cfm?com=LL104000&pg=2
Despite all of this attention, however, the challenge of actually achieving diversity remains. As Alexandra Kalev, Frank Dobbin, and Erin Kelly wrote in a recent article examining the effectiveness of employers' efforts to promote diversity, "We know a lot about the disease of workplace inequality, but not much about the cure." "Best Practices or Best Guesses? Assessing the Efficacy of Corporate Affirmative Action and Diversity Policies," 71 Am. Soc. Rev. 589, 590 (August 2006).
At the 2007 National Conference on Equal Employment Opportunity Law in Charleston, South Carolina, the Section's Equal Employment Opportunity Committee (EEOC) presented two panels that focused on efforts to increase diversity in private sector workplaces, including law firms. The consensus that emerged from both panels was clear: truly overcoming inequality in the workplace requires more than changing hearts and minds. It demands a structural, top-down approach with incentives for meeting concrete diversity goals.
Ethics Corner: Third Circuit Vindicates Plaintiff's Attorney
Justin M. Swartz and Cara E. Greene. July, 2007. Ethics Corner is a regular contribution by the ABA, Labor & Employment Law Section’s Ethics and Professional Responsibility Committee.
The Third Circuit recently overturned a district court order disqualifying a plaintiff’s attorney who had conducted an ex parte interview of the defendant’s administrative assistant. EEOC v. HORA, Inc., No. 05-5393, 2007 U.S. App. LEXIS 15705 (3d Cir. June 29, 2007) (unpublished decision). Characterizing the disqualification as “draconian,” the Circuit held that the district court abused its discretion because the lawyer did not violate any ethics rules, and, even if she had, there was no prejudice to the defendant.
The plaintiff’s lawyer, Jana Barnett, represented Manessta Beverly in a sex harassment and retaliation case against a Days Inn franchise and its management company. During discovery, Barnett conducted an ex parte interview of Debbie Richardson, an administrative assistant at the Days Inn. The district court disqualified Barnett for conducting the interview, finding that she violated Pennsylvania Rules of Professional Conduct (“PRPC”) Rules 4.2, 4.4, and 5.7.
The Third Circuit reversed, holding that Barnett did not violate Rule 4.2 because the administrative assistant was not a member of the organization with whom ex parte contact was forbidden. The Third Circuit recently overturned a district court order disqualifying a plaintiff’s attorney who had conducted an ex parte interview of the defendant’s administrative assistant.
Employer Credit-History Checks And Criminal Record Checks Of Job Applicants For Hiring Decisions: The Illegality Under Title VII Disparate Impact Doctrine
Adam T. Klein, ReNika Moore, and Professor Scott A. Moss, May 3, 2007.
The legality under Title VII of employer use of credit-history checks as a job criterion or investigative tool is a question best answered in several parts. First, are employee credit-history checks a sufficiently widespread practice to merit the issuance of written guidance by the EEOC? Second, are employee credit-history checks an employment practice that has a disproportionately negative impact on African-Americans (and other protected groups as well)? Third, are employee credit-history checks a practice that is job-related and consistent with business necessity? Fourth, and perhaps most broadly, would barring the use of employee credit-history information in determining employment suitability comport with the goals and purposes of Title VII? Each question will be answered in turn...
Whose Clients Are They? Contacting Putative Class Members
Cara E. Greene and Jill Maxwell, Labor and Employment Law, Vol. 35, No. 3, Spring 2007 www.abanet.org/labor
The prosecution and defense of class actions involve an abundance of ethical considerations. Attorneys must balance zealous advocacy with the governing rules of professional responsibility. For instance, ex parte communications are often an effective and cost-conscious way to glean information, but attorneys on both sides must consider whether contact with putative class members is permissible and, if so, what form that contact may take. With a little forethought, however, lawyers can ensure that they do not overstep ethics rules when contacting putative class members.