San Francisco partner Cheryl Orr and counsel Fey Epling wrote an article for The Recorder on recent trends that indicate a shift in the landscape of employer class actions, especially in the wake of Brinker Restaurant v. Superior Court.
Cheryl and Fey note that “employers across America are breathing a collective sigh of relief at the California Supreme Court’s ruling,” in Brinker, particularly its holding that “an employer satisfies its duties by providing and permitting breaks, as opposed to ensuring that their employees take them.” This is, however, “just the latest blow to putative class actions” they have observed as management-side class action defense practitioners.
The article outlines other factors, such as, a shift in the nature of filings, the choice of venue, the matter of class certification and a “greater sense of urgency for resolution” of litigation, that have all resulted in “a fairly dramatic shift in the class action landscape.”
To read the entire article, click here.
In consolidated cases decided on May 9, 2012, the U.S. Court of Appeals for the Seventh Circuit (which covers employers in Illinois, Indiana and Wisconsin) held that pharmaceutical sales representatives employed by Abbott Laboratories, Inc. and Eli Lilly & Co. are exempt from overtime pay requirements under the Fair Labor Standards Act’s “administrative” exemption. In so holding, the Seventh Circuit joins the Third Circuit, which similarly held in February 2010 that Johnson & Johnson sales representatives were covered by the administrative exemption. On the other hand, the Second Circuit ruled in July 2010 that the administrative exemption did not apply to sales reps of Novartis Pharmaceutical Corp.
The Seventh Circuit’s ruling on the administrative exemption comes at a time when the U.S. Supreme Court has heard arguments, and expects to rule next month, in a case addressing whether the FLSA’s separate “outside sales” exemption applies to pharmaceutical sales reps employed by GlaxoSmithKline PLC. Depending on the Supreme Court’s ruling and the particular circumstances of the employees involved, employers in the Seventh Circuit may soon have a double-barreled argument that their outside sales employees are exempt from FLSA overtime pay requirements under both the administrative and outside sales exemptions. The consolidated Seventh Circuit cases are Schaefer-LaRose v. Eli Lilly & Co., No. 10-3855, and Jirak, et al. v. Abbott Laboratories, Inc., Nos. 11-1980 and 11-2131.