Wage & Hour Collective and Class Actions: Asserting and Challenging Affirmative Defenses

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.