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, April 4, 2018

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.

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. The “doctrine of avoidable consequences” can be argued as an affirmative defense by an employer that has a distinctly 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 argue an affirmative defense successfully.

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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 good faith or avoidable consequences affirmative defenses 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?

Faculty

Johnson, Louisa
Louisa J. Johnson

Partner
Seyfarth Shaw

Ms. Johnson is a member of the firm’s national Wage & Hour Litigation Practice Group where she devotes the...  |  Read More

Stewart, Melissa
Melissa Lardo Stewart

Partner
Outten & Golden

Ms. Stewart primarily litigates class wage and hour and discrimination cases. She has represented employees across many...  |  Read More

Tripp, Noel
Noel P. Tripp

Principal
Jackson Lewis

Mr. Tripp practices exclusively in employment law and has been involved in matters pending before federal and state...  |  Read More

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Strafford will process CLE credit for one person on each recording. All formats include program handouts. To find out which recorded format will provide the best CLE option, select your state:

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