Labor and Employment partner Cheryl Orr was the subject of a Q&A for Bloomberg BNA’s Daily Labor Report. The Q&A focuses on the Fair Labor Standards Act (FLSA), the Supreme Court’s upcoming decision on class action waivers and its potential impact on litigation and employer arbitration programs, and highlights from recent 9th Circuit cases.
The Supreme Court will soon rule on the validity of class action waivers, and many employers currently involved in class action waiver litigation have moved to stay proceedings pending the Court’s decision.
“All employers of any appreciable size face the prospect of wage-and-hour class action litigation whether meritorious or not,” Cheryl said. “If the U.S. Supreme Court upholds the validity of class action waivers, it is anticipated that employers will move toward implementing arbitration programs on a much larger scale. However, it is anticipated that even with a favorable ruling, plaintiffs will look to find end runs, such as bringing California Private Attorney General Act actions.”
Secretary of Labor Alexander Acosta has announced that the Department of Labor (DOL)’s Wage and Hour Division will resume issuing opinion letters. Cheryl stated that it is anticipated that the DOL will offer guidance on issues under the FLSA and the Family Medical Leave Act—and that she would expect further guidance on employee classifications, overtime, paid leave and minimum wage issues.
Cheryl also noted the impact of opinion letters on litigation strategies. “Courts have historically considered opinion letters to be nonbinding but have acknowledged them as a good-faith defense,” Cheryl said. “Thus, litigators can bolster their litigation positions to the extent their clients’ actions align with the opinion letters and give credence to their reliance on the letters.”