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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

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, March 31, 2020

Recorded event now available

or call 1-800-926-7926

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.


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.



  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 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?


Stewart, Melissa
Melissa Lardo Stewart

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

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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