Wage and Hour

The costs and difficulty of managing wage and hour risks have grown exponentially over the last several years. It is not unusual to hear about large settlements or verdicts affecting hundreds or thousands of employees. Our Wage and Hour Team has litigated numerous complex class actions, collective actions, "hybrid" class and collective actions and individual suits in state and federal courts across the country. The team also has defended investigations by state and federal agencies for clients ranging from locally owned businesses to national Fortune 500 companies. In addition to defending wage and hour litigation, our Team helps employers avoid future litigation by developing proactive litigation avoidance initiatives. Our skilled attorneys have the depth and breadth of knowledge and experience to defend a nationwide, multi-facility collective action under the Fair Labor Standards Act (FLSA) and the efficiency to assist a small family-owned business with developing policies and practices to eliminate or lessen the risk of exposure to wage and hour claims.

Defending Wage and Hour Lawsuits

If litigation arises, FBT’s Wage and Hour Team has decades of experience in successfully defending wage and hour lawsuits – including single plaintiff, collective action, class action, and hybrid claims.  Each claim is unique and no cookie-cutter approach can apply to all clients or claims. Our team tailors its defense to each case and each client’s goals – whether that means aggressively fighting each step of the process, or facilitating an early and efficient resolution. We have been successful at all levels of litigation, including:  motions to dismiss, defeating conditional certification, defeating class certification, de-certification, summary judgment, and trial. 

Experience leads to not only efficiency and cost-effectiveness, but to good results.  Our Wage and Hour team has successfully defended the gamut of wage and hour claims, including:

  • Claims that employees were misclassified as exempt from overtime and/or minimum wage provisions.
  • Claims that employees were misclassified as independent contractors.
  • Claims that employees were incentivized or required to work “off-the-clock”, including claims that employers failed to pay for remote work on various electronic devices, work during meal breaks, donning and doffing of clothing or protective gear, or other types of alleged pre- and post-shift work.
  • Claims challenging tip pooling practices.
  • Claims that challenge an employer’s compensation, commission, or incentive plan or practices, including failure to pay, untimely payments, unlawful deductions and clawback claims.
  • Claims that challenge an employer’s calculation of the regular or overtime rate.
  • Claims an employer failed to pay prevailing wages.
How We Work

We understand a successful resolution is often dependent on managing the costs of litigation. Wage and hour claims can involve costly discovery and evidentiary battles.  We work with our clients to set realistic and efficient budgets and expectations.  In addition, we coordinate lean litigation teams that have developed efficiency through experience, with our Electronic Data Discovery (EDD) Group to manage the costs of discovery and defense. The EDD Group effectively manages the costs of data retrieval, review, hosting and production in a cost-effective manner. 

Who We Advise
  • Call centers
  • Financial services (e.g. banking, insurance, etc.)
  • Manufacturing
  • Hospitality (e.g. restaurants, hotels, country clubs, etc.)
  • Healthcare (e.g. hospitals, nursing facilities, pharmaceuticals, etc.)
  • Oil and gas
  • Home service
  • Transportation and logistics
  • Sales
  • Professional services
  • Auto recovery companies
  • Government contractors
  • Government entities
  • Non-profits
  • Telecommunications
  • Retail
  • Professional employer organizations
  • Construction
  • Audit job descriptions and conduct manager interviews to determine whether the position is exempt or non-exempt.
  • Audit independent contractor agreements and arrangements to determine proper classification.
  • Review payroll practices to confirm all compensable time is captured and overtime is properly calculated.
  • Audit timekeeping systems and practices to confirm employees are paid for all hours worked and do not work “off-the-clock”.
  • Review handbooks and other policies to confirm they comply with all applicable wage and hour laws, clearly communicate the client’s intentions, accurately describe the client’s payroll and timekeeping practices, and include all applicable safe harbors.
  • Train managers on applicable wage and hour laws and their employer’s overtime, timekeeping, and pay practices.
  • Audit compensation plans and agreements for compliance with wage payment laws.
  • Audit policies and practices for compliance with state and federal prevailing wage laws.
  • Provide training, seminars, webinars and other tools to help clients recognize and manage wage and hour risks.

Practice Highlights

  • Secured the dismissal with prejudice of all claims against a global telecommunications company in a putative nationwide class and collective action alleging that the company violated the FLSA and state wage and hour laws by allowing non-exempt service technicians to perform off-the-clock work on their computers and mobile phones.
  • Obtained dismissal with prejudice of all claims against a health care company in a class and collective action alleging that the company violated the FLSA and state wage and hour laws by misclassifying support staff as exempt under the companionship exemption.   
  • Obtained denial of conditional certification for a sales company in a putative FLSA collective action (involving over 1,000 putative class members) alleging minimum wage and overtime violations of the FLSA related to off-the-clock work and alleged systematic instructions to under-record time. 
  • Successfully resolved consolidated nationwide class and collective actions (involving over 1,100 opt-in plaintiffs and over 3,000 class members) alleging that a Fortune 200 financial services company violated the FLSA and the state wage and hour laws of 12 states by failing to pay loan officers pursuant to the terms of their offer letters, offsetting their base pay when calculating earned commissions, and permitting them to work off the clock. 
  • Successfully resolved a nationwide wage and hour class and collective action (involving over 20,000 putative class members) alleging that a call center violated the FLSA and state law by requiring customer service employees to work off the clock and failing to pay them for technical downtime and preliminary and postliminary work.
  • Successfully resolved a nationwide wage and hour class and collective action alleging a professional baseball league and its member clubs violated the FLSA by failing to pay players minimum wage and overtime for time spent training, conditioning, and preparing to play.