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

Leveraging Good Faith, Doctrine of Avoidable Consequences and Other Defenses

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

Conducted on Wednesday, July 8, 2015

Recorded event now available

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Program Materials

This CLE webinar will provide guidance for 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.


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.

The “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. The “doctrine of avoidable consequences” can be argued as an affirmative defense by an employer that has a clearly communicated policy which prohibits improper pay deductions and includes a complaint mechanism, unless the employer willfully violates the policy by continuing to make improper deductions after receiving employee complaints. 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 successfully argue an affirmative defense.



  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


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 avoidable consequences affirmative defense in wage and hour cases?
  • What strategies should counsel for employees use to challenge the avoidable consequences defense in wage and hour litigation?
  • What policies and practices should employers establish to enable them to assert certain affirmative defenses?


Ben Gipson
Ben Gipson

Of Counsel
DLA Piper

Mr. Gipson represents and counsels employers in all areas of employment law, including state and federal wage and hour,...  |  Read More

Hepworth Gershbaum & Roth
Marc S. Hepworth

Hepworth Gershbaum & Roth

Mr. Hepworth leads the firm’s Wage and Hour Team and has worked extensively on complex class and...  |  Read More

Joshua B. Waxman
Joshua B. Waxman

Littler Mendelson

Mr. Waxman has a wide-ranging labor and employment law practice with a primary focus on complex labor and...  |  Read More

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