Innovative Wage and Hour Litigation Strategy: The Faragher-Ellerth Defense

Asserting and Challenging the Avoidable Consequences Affirmative Defense in FLSA and State Collective and Class Actions

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Thursday, August 4, 2011

Recorded event now available

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This CLE course will provide guidance for employment counsel on the emerging use of the Faragher-Ellerth theory in wage and hour cases. The panel will explain strategies for counsel for employers and employees when asserting or challenging this innovative defense in FLSA and state class and collective actions.


Wage and hour class and collective actions brought under the Fair Labor Standards Act and state law have exploded, exposing employers to expensive and time consuming litigation.

This surge in wage and hour lawsuits has forced employers to develop creative strategies to defend against the suits. One such strategy—the Faragher-Ellerth defense—is emerging as an innovative tool that can help shield employers from wage and hour liability.

Listen as our panel of employment law attorneys—plaintiff and defense—discusses the application of the avoidable consequences affirmative defense, traditionally used in sexual harassment litigation, in the wage and hour context and offers best practices for employment counsel when pursuing or defending FLSA and state collective and class claims.



  1. Overview of Faragher-Ellerth defense
  2. Application of defense to FLSA and state wage and hour claims
  3. Best practices for asserting Faragher-Ellerth defense
    1. Establish policy and reporting procedure
    2. Training for managers and employees
    3. Correct improper pay practices
    4. Pay back wages
  4. Challenging the Faragher-Ellerth defense—plaintiff’s perspective


The panel will review these and other key questions:

  • How is the Faragher-Ellerth defense, typically argued in sexual harassment cases, being used by employers' counsel to defend wage and hour class actions?
  • What are some best practices for employers' counsel asserting the avoidable consequences affirmative defense in wage and hour cases?
  • What strategies should counsel for employees use to challenge the application of the Faragher-Ellerth defense in wage and hour litigation?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Lisa (Lee) A. Schreter
Lisa (Lee) A. Schreter

Chairman of the Board
Littler Mendelson

Ms. Schreter is Co-Chair of the firm’s Wage and Hour Practice Group. She focuses on representing employers in...  |  Read More

Adam T. Klein
Adam T. Klein

Outten & Golden

He chairs the firm's Class Action Practice Group. He serves as lead or co-lead plaintiffs' counsel in wage and...  |  Read More

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