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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Employment and Workers Comp

Date & Time
  • event Date

    Tuesday, March 31, 2020

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE course will guide employment counsel on leveraging affirmative defenses in wage and hour cases. The panel will explain strategies for counsel for employers and employees when asserting or challenging affirmative defenses in Fair Labor Standards Act (FLSA) and state class and collective actions.

Faculty

Noel P. Tripp
Principal
Jackson Lewis P.C.

Mr. Tripp has represented employers in matters pending before federal and state courts and administrative agencies covering the entire gamut of employment-related claims. His focus is the defense of class and collective action lawsuits under federal and state wage-and-hour laws, and the provision of preventive advice regarding wage law compliance and class action avoidance. He has defended dozens of putative wage-hour class and collective actions, ranging from “white-collar” misclassification actions to claims brought in behalf of hourly employees seeking to recover unpaid minimum, regular and/or overtime wages, amounts unlawfully deducted from wages, unpaid commissions, and gratuities. Mr. Tripp has spoken about wage-and-hour matters to numerous industry and professional associations. He has also served as a mediator for class and collective action cases and co-teaches a seminar on wage issues at Fordham Law School. 

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Melissa Lardo Stewart
Partner
Outten & Golden LLP

Ms. Stewart primarily litigates class wage and hour and discrimination cases. She has represented employees across many industries, including restaurant workers, retail workers, mortgage loan officers, service and installation technicians,  call center workers, and financial services employees. Ms. Stewart is active in her professional community, and currently serves as a board member for the New York affiliate of the National Employment Lawyers Association.

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Description

Wage and hour class and collective actions brought under the FLSA and state law enmesh employers in expensive and time-consuming litigation. In addition to the traditional affirmative defenses available under the Federal Rules, several unique affirmative defenses are available to employers faced with defending FLSA or state law wage and hour suits. However, employers must have established wage practices and policies to allow them to take advantage of these defenses in the event of a lawsuit.

One good faith defense is a complete bar to FLSA liability if an employer can prove it acted in good faith conformity with and reliance on DOL guidance. A second good faith defense to liquidated damages applies where an employer shows it took reasonable steps to ascertain the dictates of the Act and comply with them. Certain state laws also contain statutory good faith defenses.

Counsel can argue the "doctrine of avoidable consequences" as an affirmative defense where the employer distinctly communicated a policy prohibiting improper pay deductions and includes a complaint mechanism, unless the employer willfully violated the policy by continuing to make improper deductions after receiving notice. An employer may also be able to assert that an employee failed to use the employer's timekeeping system while working remotely.

Listen as our panel of employment law attorneys--plaintiff and defense--discusses the application of these and other affirmative defenses in the wage and hour context and strategies for employment counsel when pursuing or defending FLSA and state collective and class claims. The panel will review federal and state court decisions applying and interpreting the affirmative defenses and offer best practices for establishing employment policies that will allow employers to argue an affirmative defense successfully.

Outline

  1. Overview of affirmative defenses to FLSA and state wage and hour claims
  2. Best practices for asserting affirmative defenses
    1. Establish policy and reporting procedure
    2. Training for managers and employees
    3. Correct improper pay practices
    4. Pay back wages
  3. Challenging affirmative defenses: plaintiff’s perspective

Benefits

The panel will review these and other key issues:

  • What affirmative defenses may be useful in defeating certification?
  • What are some best practices for employers' counsel asserting the affirmative defenses of good faith or avoidable consequences in wage and hour cases?
  • What strategies should counsel for employees use to challenge the good faith or avoidable consequences defenses in wage and hour litigation?
  • What policies and practices should employers establish to enable them to assert certain affirmative defenses?