It’s Here! The Duane Morris Privacy Class Action Review – 2025

By Gerald L. Maatman, Jr., Jennifer A. Riley, Alex W. Karasik, Gregory Tsonis, Justin Donoho, and Tyler Zmick

Duane Morris Takeaways: The last year saw a virtual explosion in privacy class action litigation. As a result, compliance with privacy laws in the myriad of ways that companies interact with employees, customers, and third parties is a corporate imperative. To that end, the class action team at Duane Morris is pleased to present the second edition of the Privacy Class Action Review – 2025. This publication analyzes the key privacy-related rulings and developments in 2024 and the significant legal decisions and trends impacting privacy class action litigation for 2025. We hope that companies and employers will benefit from this resource in their compliance with these evolving laws and standards.

Click here to bookmark or download a copy of the Privacy Class Action Review – 2025 e-book. Look forward to an episode on the Review coming soon on the Class Action Weekly Wire!

The Class Action Weekly Wire – Episode 87: Key Trends In Wage & Hour Class And Collective Actions

Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jerry Maatman, Jennifer Riley, and Greg Tsonis with their discussion of the key trends analyzed in the third edition of the Duane Morris Wage & Hour Class And Collective Action Review, including courts’ interpretation of the conditional certification process, a circuit-by-circuit scorecard, and best practices for employers in 2025.

Bookmark or download the Wage & Hour Class And Collective Action Review e-book here, which is fully searchable and accessible from any device.

Check out today’s episode and subscribe to our show from your preferred podcast platform: Spotify, Amazon Music, Apple Podcasts, Samsung Podcasts, Podcast Index, Tune In, Listen Notes, iHeartRadio, Deezer, and YouTube.

Episode Transcript

Jerry Maatman: Welcome back, podcast listeners, to our first session of the Class Action Weekly Wire for calendar year 2025. Thank you for being here. I’m Jerry Maatman, a partner at Duane Morris, and joining me today are my partners, Jen Riley and Greg Tsonis. Welcome back.

Jennifer Riley: Thank you, Jerry, happy to be on the first week of Weekly Wire podcast of 2025.

Greg Tsonis: Thanks, Jerry. Glad to be here.

Jerry: Today on our podcast we’re going to be discussing the most recent publication of the Duane Morris Class Action Defense group regarding the 2025 Wage & Hour Class And Collective Action Review. Listeners can find the e-book version of this publication on our blog, the Duane Morris Class Action Defense Blog. Jen, can you share with our listeners some of the ins and outs of this executive summary and e-book?

Jennifer: Absolutely, Jerry. In the Duane Morris Wage & Hour Class and Collective Action Review, we provide an overview of the trends, the key decisions, and the key settlements impacting the wage and hour space over the past year. The purpose of the Review is really multifaceted. First, we hope that it will demystify some of the complexities of class and collective action litigation in the wage and hour space. Second, we really hope the book will keep corporate counsel updated on the ever-evolving landscape of Rule 23 and FLSA collective actions and enable them to really make informed decisions in dealing with these complex litigation risks.

Jerry: Well, I know that wage and hour litigation is one of the hallmarks of our practice with our team collectively having over 225 years of experience in defending these sorts of cases. The review was edited by the three of us on this podcast and we have dozens of additional contributors that analyzed all of the wage and hour class and collective action certification rulings and settlements over the past 12 months. Greg, from your standpoint in terms of dealing with general counsel, what do you think are some of the benefits of this resource?

Greg: Great question, Jerry. So, wage and hour litigation has long been a focus of the plaintiffs’ class action bar. Part of our purpose in putting this together is really to assist our clients by helping them identify developing trends in the case law and offering practical approaches and dealing with these types of cases and class and collective action litigation.

Jerry: As you had mentioned – in 2024, this was a very active space for the plaintiffs’ class action bar, and I think one of the things that clients have remarked to me about is the statistical analysis contained in the Review in terms of looking at circuits’ success rates for both the plaintiff side and the defense side. I know in calendar year 2024, there were approximately 160 motions that were decided and actually plaintiffs had a high degree of success at close to 80%. Jen, what’s your take on why the plaintiffs’ bar is able to certify in essence 4 out of 5 cases?

Of the 157 total motions for conditional certification filed in federal courts in 2024, the plaintiffs won conditional certification 125 times, or at a success rate of 80%, while 32 motions were denied.

Jennifer: Great question, Jerry. So, the threshold for conditional certification tends to be very low. In many cases, plaintiffs are submitting declarations – sometimes only one or two declarations, sometimes with payroll or time records – and courts are routinely accepting this minimal showing. It’s really not about proving the case, at this stage just about showing there’s a plausible basis for contending that the same allegations apply across a defined group. So, given that the plaintiffs’ bar knows this process so well, it’s really no surprise that they are continuing to have a high rate of success here.

Greg: Exactly, and plaintiffs are often able to leverage the conditional certification process and the subsequent notice that issues to bring in more employees to build their case. The fact that it’s relatively easy to get certified gives them a significant advantage right from the start.

Jerry: At least in all circuits except two, both the Fifth and Ninth Circuits, there’s a standard two-part test. A first stage called the lenient stage of conditional certification, and then a second stage called decertification. What occurred in 2024 in terms of how decertification motions came down, especially with respect to the changes or flux in the case law based on what’s coming out of the Fifth and Sixth Circuits?

Greg: That’s right, Jerry. So, after conditional certification, there’s a decertification phase where the court looks closer at the actual claims, the actual evidence that the plaintiffs have been able to marshal, and determine whether those employees are actually similarly situated. Now, historically, federal courts were almost universally following a two-stage process, but as of 2021, the Fifth Circuit threw a wrench in that with its decision in Swales v. KLLM Transport Services. There, the Fifth Circuit essentially abandoned the two-stage process and instituted a more rigorous approach where they required plaintiffs to present stronger evidence upfront. The Sixth Circuit followed suit in a case in 2023, but took a different approach by imposing even stricter standards.

Jerry: It’s very interesting to me that a piece of New Deal legislation passed in 1938, even close to 100 years later, has three different standards – a virtual patchwork quilt of case law depending on where an employer is sued, and what particular circuit’s law is applicable to the certification motion. What’s that like, Jen, in terms of what employers face in trying to defend themselves in these sorts of cases?

Jennifer: Absolutely, Jerry. In a word, it’s creating inconsistency. And that inconsistency could be problematic because it makes predicting outcomes more difficult. And with these now 3 distinct standards, there is a growing chance that the Supreme Court eventually will step in to provide some clarity here.

Jerry: I think it also has something to do with case architecture and venue selection. In 2023, we saw two dozen rulings in the Sixth Circuit. Yet last year, only a dozen, basically a 50% drop in the number of cases filed and then went to certification there. What do you think are the long-term implications in terms of FLSA litigation and venue selection?

Given the Sixth Circuit’s abandonment of the traditional two-step certification process, we expected a material decrease in FLSA cases filed in that in 2024. Indeed, there were only 12 rulings on certification and decertification motions in 2024 in the Sixth Circuit, down from 22 total rulings in 2023. In 2024, the Second Circuit issued the most certification rulings (27 granted; 6 denied), followed by the Fourth Circuit (20 granted; 1 denied); and the Ninth Circuit (13 granted; 7 denied).

Jennifer: Well, Jerry, it’s hard to say for sure. On the one hand, the stricter certification process could deter some plaintiffs from filing in the Sixth Circuit. That certainly seems to have been the case over the past year. On the other hand, employers could face a tougher time getting cases decertified after they’ve been conditionally certified which could lead to larger settlements, or more cases being litigated in other jurisdictions. So, we may see a shift in how and where the cases are filed going forward.

Jerry: Well, certainly anyone who is awake and watching TV on January 20th saw that change is inevitable, and change is now upon us, at least at the governmental sector. Greg, what do you think 2025 bodes for employers in terms of the types of things that the private plaintiffs’ bar will do, especially in the context of FLSA class and collective action litigation?

Greg: The overall trend is clear, Jerry. Employers should be aware that wage and hour litigation isn’t going away anytime soon. Given the plaintiffs’ bar’s ongoing success in these types of cases, and the ease with which they’re able to secure conditional certification, employers really need to be proactive. That means making sure that their pay practices are fully compliant, making sure that they’re reviewing employee classifications, and being ready to respond quickly to potential lawsuits. If they don’t, they might face costly litigation even in those jurisdictions where the plaintiffs’ bar is seeing more pushback.

Jennifer: And to add to that, employers also should be mindful of jurisdictions that are considered plaintiff-friendly, such as the Second Circuit, Fourth Circuit, Ninth Circuit. These are areas where a lot of FLSA litigation is concentrated and they tend to have even higher success rates for the plaintiffs.

Jerry: Success is all about filing the lawsuit, certifying it, and monetizing it. The Review spends a lot of pages delving into key settlements in the wage and hour space – what were the results in 2024 and what does it tell us for 2025?

Greg: Well, Jerry, plaintiffs did very well in securing high-dollar settlements in 2024 in this space, although not quite as well as they did in 2023. In 2024, the top 10 wage and hour settlements totaled just shy of $615 million. That was a decrease from 2023, when the top 10 wage and hour settlements totaled $742.5 million, but relatively in line with recent years.

The top 10 wage & hour class and collective action settlements totaled $614.55 million in 2024, down from $742.5 million in 2023, and up from $574.55 million in 2022.

Jerry: Well, my prognostications are the numbers in 2025 are going to go through the roof, and I think we’re apt to see even higher numbers than we’ve seen ever before. But obviously the jury’s still out on that. Well, thank you, Jen, and thank you, Greg, for your thought leadership and analysis in this area, and thank you to our loyal blog readers for tuning in to our first podcast of 2025. Please order your free copy of the Duane Morris Wage & Hour Class And Collective Action Review e-book right off of our blog.

Greg: Thank you for having me, Jerry, and thank you, listeners.

Jennifer: Thanks so much, everyone.

Just Released! The Duane Morris Wage & Hour Class And Collective Action Review – 2025

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Gregory Tsonis

Duane Morris Takeaways: Complex wage & hour litigation has long been a focus of the plaintiffs’ class action bar. The relatively low standard by which plaintiffs can achieve conditional certification under the Fair Labor Standards Act (FLSA), often paired with state law wage & hour class claims, offers a potent combination by which plaintiffs can pursue myriad employment claims. To that end, the class action team at Duane Morris is pleased to present the second edition of the Wage & Hour Class And Collective Action Review – 2025. This new publication analyzes the key wage & hour-related rulings and developments in 2024 and the significant legal decisions and trends impacting wage & hour class and collective action litigation for 2025. We hope that companies and employers will benefit from this resource and that it will assist them with their compliance with these evolving laws and standards.

Click here to download a copy of the Wage & Hour Class And Collective Action Review – 2025 eBook.

Stay tuned for more wage & hour class and collective action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.

U.S. Supreme Court Unanimously Holds That FLSA Exemptions Are Subject To The Same Standard Of Proof As Almost All Other Civil Cases

By Gerald L. Maatman, Jr., Gregory Tsonis, and Ryan T. Garippo

Duane Morris Takeaways:  On January 15, 2025, in Carrera v. EMD Sales, Inc., No. 23-217, 2025 WL 96207 (S. Ct. Jan. 15, 2025), the U.S. Supreme Court unanimously reversed the U.S. Court of Appeals for the Fourth Circuit, holding that the burden of proof required to prove the applicability of exemptions to the Fair Labor Standards Act (the “FLSA”) is not the “clear and convincing evidence” standard applied in the Fourth Circuit.  In so doing, the Supreme Court harmonized the law across the country and confirmed that such exemptions need only be proven by a preponderance of the evidence.

Background

E.M.D Sales, Inc. (“EMD”) is a company that distributes food products in the Washington D.C. area.  It employs sales representatives who work with partner grocery stores to help manage EMD products.  The sales representatives “spend most of their time outside of EMD’s main office servicing stores on their routes,” however, there was disagreement as to “whether [the] sales representatives’ primary duty is to make sales of EMD products.”  Carrera v. EMD Sales, Inc., No. 17-CV-3066, 2021 WL 1060258, at *2 (D. Md. Mar. 19, 2021).

In 2017, several of these sales representatives sued EMD in federal court in Maryland, arguing that they were entitled to overtime pay under the FLSA.  In response, EMD argued that the sales representatives were exempt from the FLSA’s requirements pursuant to the “outside salesman” exemption.  29 U.S.C. § 213(a)(1). 

Following a bench trial on the issue, the district court held that the outside salesman exemption did not apply.  In so doing, the district court relied on Fourth Circuit precedent holding that the employer has the burden of proving the applicability of any FLSA exemption by “clear and convincing evidence.”  Carrera, 2021 WL 1060258, at *5In federal courts outside of the Fourth Circuit, an employer is only required to prove these exemptions under a lower standard of proof called the preponderance-of-the-evidence standard, which is the typical standard in civil cases.  Id.  The district court held that the employer failed to meet the heightened burden of proof regarding the applicability of the exemption, and thus held that the EMD sales representatives were entitled to overtime pay.

On appeal, EMD argued that the heightened “clear and convincing evidence” standard, which had long been the applicable standard for federal courts within the Fourth Circuit, should be overturned so it conformed with the standard applied across the rest of the country.  The Fourth Circuit declined to do so and explained that “the district court properly applied the law of this circuit in requiring the defendants to prove their entitlement to the outside sales exemption by clear and convincing evidence.”  Carrera v. EMD Sales, Inc., 75 F.4th 345, 353 (4th Cir. 2023).  EMD, thereafter, sought review from the U.S. Supreme Court, which granted certiorari to resolve the issue.

The Supreme Court’s Opinion

In a unanimous 9-0 opinion written by Justice Kavanaugh, the Supreme Court explained that the “Fourth Circuit stands alone in requiring employers to prove the applicability of Fair Labor Standards Act exemptions by clear and convincing evidence.  Every other Court of Appeals to address the issue has held that the preponderance standard applies.”  Carrera, 2025 WL 96207, at *3.  In noting that the “preponderance of the evidence” standard is “the established default standard of proof in American civil litigation,” the Supreme Court explained that the default standard can only be abrogated by statute, constitutional requirement, or other uncommon situations where unusual coercive relief is sought (e.g., revocation of citizenship, etc.). 

In analyzing whether any such circumstances existed, the Supreme Court first observed that the FLSA is silent on the applicable burden of proof, noting there is no language that suggests that Congress intended a heightened burden to apply.  Second, because the FLSA does not implicate constitutional rights, the U.S. Constitution did not compel a different result.  Third, because FLSA lawsuits are akin to other employment statutes that entitle certain employees to monetary relief, they are not unusually coercive. 

Turning next to policy arguments in favor of a heightened standard, the Supreme Court noted that other important statutes, such as Title VII of the Civil Rights Act, apply a preponderance standard while seeking to achieve laudable policy goals, such as ending discrimination in the workplace.  Id. at *4-5.  Finding nothing particularly distinct about the FLSA, the Supreme Court ultimately rejected the policy arguments advanced by the sales representatives, explaining that “rather than choose sides in a policy debate, this Court must apply the statute as written and as informed by the longstanding default rule regarding the standard of proof.”  Id. at *5.

As a result, the Supreme Court reversed the decision of the Fourth Circuit and held that an employer must prove the applicability of FLSA exemptions only by a preponderance of the evidence.  The Supreme Court also remanded the case back to the district court for a determination as to whether EMD met the lower evidentiary burden.

Implications For Employers

The Supreme Court’s decision in Carrera is a welcome reprieve for employers sued in Maryland, Virginia, West Virginia, North Carolina, and South Carolina federal courts.  These employers will no longer have to satisfy a heightened burden of proof that they would otherwise not have to satisfy if sued for the same claims in any other state.  Accordingly, employers based in those states can rest a little easier knowing that the standard for proving FLSA exemptions if sued will be the default standard applied in other jurisdictions, and not the heightened “clear and convincing evidence” standard that has long applied.

Fourth Circuit Vacates Class Certification Of Overbroad Class Consisting of All Shift Managers At Bojangles Restaurants In North And South Carolina


By Gerald L. Maatman, Jr., Jennifer A. Riley, and Gregory Tsonis

Duane Morris Takeaways: On December 17, 2024, in a critical ruling in Stafford, et al. v. Bojangles’ Restaurants, Inc., No. 23-2287 (4th Cir. Dec. 17, 2024), the Fourth Circuit vacated the district court’s certification of a class action involving allegations of unpaid off-the-clock work and unauthorized edits to employee time records at Bojangles Restaurants. The Fourth Circuit determined that the district court erred in its application of Rule 23’s commonality and predominance requirements, relying on overly broad class definitions and vague assertions of company-wide policies. The decision underscores the importance of specificity in class certification arguments and highlights the successful opposition to class certification when plaintiffs rely upon generalized allegations and purportedly common policies in wage-and-hour litigation.

Case Background

Bojangles’ Restaurants, Inc. operates over 300 fast-food locations across eight states. The company employs a three-tier management structure with shift managers, assistant general managers, and general managers. Shift managers, the lowest tier, are responsible for a variety of operational duties, including pre-opening and post-closing tasks. Bojangles maintains internal policies prohibiting off-the-clock work and requiring employees to clock in and out to ensure accurate tracking of hours and overtime pay.

The lawsuit arose from allegations that Bojangles violated its policies by requiring shift managers to perform off-the-clock work and, at times, by systematically editing time records to reduce overtime payments. The Named Plaintiff Richard Stafford, a former hourly-paid shift manager, alleged that he was frequently required to work off the clock, perform unpaid tasks such as cleaning, making bank deposits, and traveling between locations, and was subject to unauthorized time-shaving.

The lawsuit was originally filed as an FLSA collective action and, in 2020, the district court conditionally certified a collective action for Stafford’s FLSA claims that attracted nearly 550 opt-in plaintiffs. Stafford later amended the complaint to assert state law class claims under various state wage and hour laws, and subsequently sought Rule 23 class certification for state law claims in North Carolina, South Carolina, Alabama, Georgia, Kentucky, Tennessee, and Virginia. While five of the state law classes failed to meet Rule 23’s adequacy prong, the district court certified classes for North Carolina and South Carolina shift managers, citing the Bojangles Opening Checklist, which allegedly mandated pre-shift tasks, as a common issue. The class definitions broadly included all shift managers employed within three years of the complaint’s filing since the district court found that at least 80% of shift managers would have worked an opening shift at some point.

Bojangles appealed, arguing that the district court’s class certification was overly broad and lacked the specificity required under Rule 23.

The Fourth Circuit’s Decision

The Fourth Circuit found that the district court relied excessively on generalized claims of Bojangles’ policies without providing specific evidence of commonality among the class members. While the Opening Checklist provided some basis for commonality regarding pre-shift work, the district court failed to address whether other alleged activities, such as time-shaving and post-closing tasks, were similarly unified by a common policy. The Fourth Circuit emphasized that “[a]llegations of generalized policies are not usually sufficient for the purposes of class certification” and further noted that Rule 23 does not permit a “30,000-foot view of commonality.” Id. at 11. Instead, plaintiffs must demonstrate that common questions predominate over individualized issues, and they had not done so with respect to the type of alleged off-the-clock work and time shaving.

The Fourth Circuit also criticized the overly broad class definitions, which included all shift managers employed during a three-year period without specifying the types of claims or injuries alleged. Such vague definitions risked including individuals with no viable claims and failed to meet Rule 23’s requirements. The lack of specificity raised concerns about commonality, predominance, and typicality, according to the Fourth Circuit, because some plaintiffs may not even have off-the-clock or time shaving claims against Bojangles.  It suggested that sub-classes might be appropriate to address distinct issues but left this determination to the district court on remand.

The decision concluded by emphasizing the importance of adhering to Rule 23’s prerequisites to ensure that class actions remain a viable and efficient mechanism for resolving disputes.  Characterizing Rule 23 class actions as a “carefully crafted compromise,” the Fourth Circuit observed that its decision was meant to “ensure that the class-action train stays on the tracks.”  Id. at 19. Without clear evidence of commonality and precise class definitions, the Fourth Circuit ultimately vacated and remanded the district court’s class certification decision.

Implications for Employers

This decision provides a helpful roadmap for employers facing wage-and-hour class action cases premised on an alleged common policy.  As this case exemplifies, employers should focus on the lack of specificity in alleged policies to counter claims of commonality or predominance. Demonstrating variations in employee experiences, decision-making processes, or other individualized factors can effectively undermine arguments for class-wide treatment.

Thinking through such considerations is an absolute necessity, and one that begins with the planning of a strategic defense early in the litigation process. Documenting lawful policies and practices during discovery lays a foundation for opposing class certification.   By emphasizing the need for clear evidence and precise definitions, this ruling underscores the challenges plaintiffs face in meeting Rule 23’s rigorous standards. Employers can use these standards to their advantage, ensuring that ill-defined and nebulous classes are not certified in the high-stakes litigation they often face.

Federal Court In Kansas Blows Up ADEA Collective Action Against Learjet, Inc. And Bombardier, Inc., Granting Defendants’ Motion To Decertify 

By Gerald L. Maatman, Jr. and Gregory Tsonis

Duane Morris Takeaways: In a decisive ruling on February 29, 2024, Judge Eric F. Melgren of the U.S. District Court for the District of Kansas granted the motion by defendants Bombardier, Inc. (“Bombadier”) and its subsidiary Learjet, Inc., (“Learjet”) in Wood, et al. v. Learjet Inc. et al., Case No. 18-CV-02681 (D. Kan. Feb. 29, 2024), to decertify a collective action brought under the Age Discrimination in Employment Act (“ADEA”). This landmark decision underscores the increased scrutiny applied during the decertification stage of collective actions, especially concerning allegations under the ADEA, and how defendants can successfully achieve decertification by attacking proffered evidence and establishing the individualized inquiries which preclude proceeding as a collective action.

Case Background

The lawsuit originated from claims by two named plaintiffs, both over the age of 40 and former employees at the Bombardier Flight Test Center (“BFTC”) in Wichita, Kansas, operated by Learjet.  The named plaintiffs alleged a pattern or practice of age discrimination in violation of the ADEA, i.e., specifically that defendants targeted non-union employees over the age of 40 for termination.  Following the lawsuit’s initiation, and applying the “similarly situated” collective action standard incorporated by the ADEA from the Fair Labor Standards Act, plaintiffs sought conditional certification of a collective action under the traditionally “lenient” standard applied by the courts within the Tenth Circuit and others in evaluating certification of collective actions.  Specifically, the plaintiffs sought and obtained conditional certification for a collective action consisting of non-union personnel employed since April 2, 2016 at the BFTC whose employment was terminated when they were over 40 years of age.  After the dissemination of notice, additional plaintiffs opted in, with four remaining by the time the defendants moved for decertification.

Procedurally, the defendants moved to decertify the collective action after the conclusion of fact discovery.

The two named plaintiffs and four opt-ins all worked in the BFTC, were over the age of 40 at the time their employment ended, and were terminated for various reasons.  One named plaintiff was terminated as a result of performance issues and a safety violation.  The other named plaintiff was placed on a performance improvement plan for time management issues that resulted in his termination.  While Learjet terminated one opt-in plaintiff for insubordination in connection with his failure to repay a tax payment reimbursement to the company, the three other opt-in plaintiffs were laid off as part of corporate reorganizations, with performance playing a role in some, but not all, layoff-related terminations.

The Court’s Decision

Applying the Tenth Circuit’s two-step approach for collective action certification, the Court moved from the “lenient standard” at the conditional certification stage to the “stricter” standard post-discovery to assess whether the plaintiffs were “similarly situated.”  Id. at 9.  The analysis to determine whether the members of the collective action were “similarly situated” to the named plaintiffs involved examining disparities in employment circumstances and available individual defenses, as well as procedural fairness and efficiency considerations.

The Court found the evidence of a discriminatory policy, predicated on an alleged statement about the company’s age composition, insufficient to establish a pattern or practice of discrimination. To establish an unlawful policy, plaintiffs relied on a single statement made by a director at a meeting in which he “drew an inverted triangle to represent a large number of older workers (at the top) and a small number of younger workers (at the bottom)” and allegedly stated that “the age balance was upside down” and that they “needed to reduce the age of the Company.”  Id. at 3.  The Court, however, determined that “no evidence” of a discriminatory policy existed other than the alleged statement.  Notably, the Court highlighted the lack of documentation, meetings, or direct involvement by management in any discriminatory policy’s alleged development or implementation.  Id. at 13.  Furthermore, terminations affecting the named plaintiffs and opt-ins spanned three years and involved various decision-makers, and evidence demonstrated that the average age of BFTC employees and percentage of workers over the age of forty increased between 2015 and 2019.  Id. at 8, 13.

The Court also considered the individual circumstances of the named plaintiffs’ and opt-ins’ terminations, noting significant differences in the reasons for termination and the involvement of different managers in these decisions.  The Court credited defendants’ argument that individualized defenses required decertification, as some opt-in plaintiffs executed releases barring their ADEA claims, the named plaintiffs’ claims were limited by the scope of their charges of discrimination, and one opt-in failed to disclose claims against defendants in bankruptcy proceedings.  Id. at 16.  Though noting that the individualized evidence was “not onerous,” the Court opined that the diversity in employment circumstances and the presence of individualized defenses underscored the plaintiffs’ disparate situations, which counseled against the maintenance of a collective action.  Id. at 16.  Finally, the Court also found that the “lack of common representative evidence” and the “highly individualized” circumstances of each plaintiff threatened to confuse a jury by requiring separate mini trials, which was wholly inefficient.  Id. at 17.  Accordingly, the Court granted defendants’ motion to decertify.

Implications for Employers

This decision sends a strong message about the potential hurdles faced by plaintiffs in sustaining collective actions after fact discovery, particularly in pattern-or-practice ADEA cases. For employers, the ruling highlights the importance of meticulous record-keeping, clear performance management, and consistent application of termination policies to defend against collective action claims effectively.

Moreover, this decision showcases the strategic value of aggressively challenging collective action certification on the basis of individualized claims and defenses, thereby preventing the broad-brush grouping of distinct employment cases. Employers should also note the critical role of early, proactive legal strategies in managing and mitigating the risks associated with collective action litigation.

Just Released! The Duane Morris Wage & Hour Class And Collective Action Review – 2024


By Gerald L. Maatman, Jr., Jennifer A. Riley, and Gregory Tsonis

Duane Morris Takeaways: Complex wage & hour litigation has long been a focus of the plaintiffs’ class action bar. The relatively low standard by which plaintiffs can achieve conditional certification under the Fair Labor Standards Act (FLSA), often paired with state law wage & hour class claims, offers a potent combination by which plaintiffs can pursue myriad employment claims. To that end, the class action team at Duane Morris is pleased to present the second edition of the Wage & Hour Class And Collective Action Review – 2024. This new publication analyzes the key wage & hour-related rulings and developments in 2023 and the significant legal decisions and trends impacting wage & hour class and collective action litigation for 2024. We hope that companies and employers will benefit from this resource and assist them with their compliance with these evolving laws and standards.

Click here to download a copy of the Wage & Hour Class And Collective Action Review – 2024 eBook.

Stay tuned for more wage & hour class and collective action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.

Implementation Of Equal Pay And Benefits Requirement Of The Illinois Day & Temporary Labor Services Act Likely Postponed Until April 2024

By Gerald L. Maatman, Jr. and Gregory Tsonis

Duane Morris TakeawaysIn a significant development impacting both staffing agencies and their customers, recent legislative changes in Illinois propose to delay implementation of the equal pay provision of the Illinois Day and Temporary Labor Services Act (IDTLSA) until April 1, 2024.  Further, recent guidance from the Illinois Department of Labor clarifies that the 90-day period which triggers the equal pay and benefit provision requires a temporary laborer to actually work 90 days for a client employer.  A comprehensive breakdown of the 2023 amendments to the IDTLSA and the law’s significant new requirements can be found here.

Proposed Amendment And Recent Clarification To Equal Pay And Benefit Provision

On November 9, 2023, both houses of the Illinois General Assembly passed legislation that further amends Section 42 of the IDTLSA.  The original IDTLSA amendments, passed on August 4, 2023, required staffing firms to provide day and temporary laborers with equal pay and benefits as workers employed directly by the client employer after 90 days of work. The new bill passed by the Illinois legislature, HB 3641, proposes to delay the start of the 90-day calculation period.  Specifically, the approved bill adds language to the IDTLSA stating that “[t]he calculation of the 90 calendar days may not begin until April 1, 2024.”  This proposed delay would provide employers and staffing agencies with additional time to ensure compliance with the IDTLSA’s equal pay requirements.

It is important to note that this amendment, if signed into law by Governor J. B. Pritzker, extends the timeline for compliance with the IDTLSA’s equal pay and benefits provision only.  It does not, however, exempt employers and staffing agencies from adhering to other mandates of the IDTLSA, which took effect on August 4, 2023.  These mandates include but are not limited to placement fee restrictions, required safety training, labor issue disclosures, and stringent recordkeeping requirements.

Further clarifying the scope of these requirements, the Illinois Department of Labor published a list of frequently asked questions following the amendments’ passage on August 4, 2023.  One frequent question raised by employers and staffing agencies alike is whether the 90 days which entitle a temporary employee to equal pay and benefits is 90 days assigned at a client or 90 days actually worked.  The IDOL’s recently published Day and Temporary Labor Service Agency FAQ (which can be found here) clarifies that the 90-day count “includes only days worked by a day or temporary laborer for the third-party client within a 12-month period, not simply the total duration of the contract or assignment.”  Notably, even a minimal amount of time worked on any given day will count towards the 90-day total.

Implications for Employers and Staffing Agencies

This legislative update and further guidance from the Illinois Department of Labor underscore the dynamic nature of labor laws and the importance of staying informed.  Given the IDTLSA’s extensive requirements and private right of action as an enforcement mechanism, employers and staffing agencies must remain vigilant in understanding and complying with the law’s evolving requirements to avoid potential legal complications.

Revised Illinois Day and Temporary Labor Services Act: Implications For Staffing Agencies And Their Customers

By Gerald L. Maatman, Jr., Gregory Tsonis, and Shaina Wolfe

Duane Morris TakeawaysRecently, the Illinois General Assembly made substantial modifications to Illinois’ Day and Temporary Labor Services Act (820 ILCS 175/). The legislation drastically alters the legal landscape for staffing agencies and their clients.  These amendments, codified in HB2862, were passed on May 19, 2023, and presented to the Governor for signing on June 16, 2023.  Absent a veto, the law will automatically come into effect upon the date of the Governor’s approval or no later than August 15, 2023, if no action is taken. The alterations made to the Act are significant and present considerable implications for staffing agencies that employ or utilize day or temporary laborers, as well as their customers.  The changes to the Act impose increased obligations and require unprecedented information-sharing between staffing agencies and their customers to ensure compliance with the new requirements.  When paired with increased penalties and a third-party enforcement mechanism, staffing agencies and their customers face substantially increased regulatory and compliance burdens and vastly increased exposure to monetary penalties and litigation.

An Overview Of The Changes

The proposed changes can be grouped into various categories, each with its unique impact on staffing agencies and their customers. One element that has not changed, however, is the definition of “day and temporary labor,” which remains defined as “work performed by a day or temporary laborer at a third party client,” but excluding work “of a professional or clerical nature.” 820 ILCS 175/5.  The amended Act contains the several significant modifications.

Equivalent Compensation And Benefits

The new legislation requires that day and temporary laborers assigned to a client for more than 90 calendar days must receive equal compensation and benefits (“equal pay for equal work”) as their counterparts directly employed by the client.  The requisite equal pay and benefits to qualifying temporary laborers must, at a minimum, match the least paid direct hire at the same seniority level, performing work of a substantially similar nature under substantially similar working conditions.  The staffing agency may, in lieu of benefits to a temporary worker, choose to compensate the worker with the cash equivalent of those benefits.  In instances where there is no direct hire for comparison, the temporary worker should be paid an equivalent salary and receive the same benefits as the lowest-paid employee at the nearest level of seniority.  Furthermore, if a staffing agency requests it, a client company is obligated to supply the staffing agency with all relevant information regarding the job roles, pay, and benefits of directly hired employees.

These changes present significant challenges for staffing agencies and their customers alike.  The revised legislation, for example, does not define what “benefits” fall within the Act and which must be provided to qualifying temporary workers and what impact, if any, the staffing agencies’ benefit plans offered to workers have on the requisite compensation.  Client companies must provide staffing agencies with the necessary information as to “job duties, pay, and benefits” or risk committing a violation of the Act punishable by a $500 penalty and attorneys’ fees and costs.  As a result, the uncertainty injected by the new requirements presents several practical challenges to staffing agencies and client companies alike.

Disclosure Of Labor Disputes

The revised Act requires staffing agencies to inform laborers, before dispatch, if they will be working at a site currently experiencing “a strike, a lockout, or other labor trouble.”  820 ILCS 175/11.

The notice to the temporary worker must be in a language that the worker understands and must inform the worker of the dispute and the worker’s right to refuse the assignment “without prejudice to receiving another assignment.”  The phrase “other labor trouble” is undefined in the revised Act, further inserting ambiguity and uncertainty for staffing agencies in compliance with the proposed law.

Safety Inquiries And Training

The amendments also introduce considerable new safety-related responsibilities for both staffing agencies and their client companies.

Prior to assigning a temporary worker, a staffing agency is obligated to inquire into the safety and health practices of the client company, inform the temporary worker about known job hazards, offer general safety training about recognized industry hazards, and document this training. In addition, the agency should give a general overview of its safety training to the client company at the onset of placement, provide temporary workers with the Illinois Department of Labor’s hotline for reporting safety concerns, and instruct the temps on whom to report safety issues to in the workplace.

Simultaneously, client companies are also compelled to adhere to several new safety-related requirements before a temporary worker begins work.  Client companies must disclose any anticipated job hazards, review the safety and health awareness training received by the temporary workers from their staffing agencies to ensure its relevance to their specific industry hazards, offer specific worksite hazard training, and maintain records of such training.  These records must also be confirmed to the staffing agency within three business days of the training completion. If a temporary worker’s role is altered, the company must provide updated safety training to cover any specific hazards of the new role.  In addition, client companies must grant staffing agencies access to the worksite to verify the training and information given to temporary workers.

Increased Fees And Penalties

Under the revised law, fees charged to staffing agencies for registration with the Illinois Department of Labor have increased.  Penalties for staffing agencies and client companies in violation of notice requirements have also seen a substantial increase, and now range from $100 to $18,000 per first violation (up from $6,000) and $250 to $7,500 for repeat violations within three years (up from $2,500).  Distinct violations may be found on the basis of the type of violation, the day on which the violations occurred, or even each worker impacted by a violation, thereby drastically increasing exposure to staffing agencies and their client companies.

The Illinois Attorney General may even request that a court suspend or revoke the registration of a staffing agency for violating the Act or when warranted by public health concerns.

Third-Party Enforcement

The amendments also provide third-party organizations – defined as any entity “that monitors or is attentive to compliance with public or worker safety laws, wage and hour requirements, or other statutory requirements” – with the power to initiate civil actions to enforce compliance with the Act.

Notably, these “interested parties” can bring suit against staffing agencies and/or their customers if they merely hold a “reasonable belief” that a violation of the Act has occurred in the preceding three years.  As a prerequisite to filing suit, these organizations must first file a complaint with the Illinois Department of Labor, which provides notice to the staffing agency or client of the complaint.  However, regardless of whether the Department of Labor finds the complaint without merit, or even if the violation is cured, the interested party can still receive a right to sue notice and proceed with litigation.  A prevailing party in litigation is entitled to 10% of any assessed penalties, as well as attorneys’ fees and costs.

Implications For Employers

The modifications to the Day and Temporary Labor Services Act present several potential complications and ambiguities for staffing agencies as well as their customers.  Notably, the requirement of equal pay for equal work, after a laborer has been with a client for over 90 days, creates substantial issues in what constitutes “equal work,” “equal pay,” and which benefit programs fall within the compensation requirements.   Moreover, the provision permitting staffing agencies to pay the hourly cash equivalent of the actual cost benefits in lieu of the required benefits further muddies the waters and requires unprecedented information-sharing between staffing agencies and their clients.  Staffing agencies’ obligation to inform temporary workers of “other labor trouble” at client sites is vague, and the lack of a clear definition may lead to compliance issues.  Moreover, the increased fees, penalties, and potential civil actions initiated by third-party organizations may lead to additional regulatory and litigation burdens for staffing agencies and clients alike. Finally, the private right of action created by the enactment is sure to prompt class actions by advocacy groups.

These substantial changes call for staffing agencies and their clients to revisit their current policies and practices to ensure compliance with the revised Act before it comes into effect. As the amendments hold significant implications for staffing agencies and client companies alike, early communication and a cooperative approach is recommended to navigate the new requirements effectively.  While further guidance from the Department of Labor is likely to clarify several ambiguities in the Act, in the meantime, staffing agencies and client companies should immediately seek legal counsel to better understand  the changes, assess the specific impact of each category of changes on their businesses, and ensure compliance to minimize exposure to penalties or litigation.

Introducing The Duane Morris Wage & Hour Class And Collective Action Review – 2023

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Gregory Tsonis

Duane Morris Takeaways: Complex wage & hour litigation has long been a focus of the plaintiffs’ class action bar. The relatively low standard by which plaintiffs can achieve conditional certification under the Fair Labor Standards Act (FLSA), often paired with state law wage & hour class claims, offers a potent combination by which plaintiffs can pursue myriad employment claims. To that end, the class action team at Duane Morris is pleased to present the inaugural edition of the Wage & Hour Class And Collective Action Review – 2023. This new publication analyzes the key wage & hour-related rulings and developments in 2022 and the significant legal decisions and trends impacting wage & hour class and collective action litigation for 2023. We hope that companies and employers will benefit from this resource and assist them with their compliance with these evolving laws and standards.

Click here to download a copy of the Wage & Hour Class And Collective Action Review – 2023 eBook.

Stay tuned for more wage & hour class and collective action analysis coming soon on our weekly podcast, the Class Action Weekly Wire.

© 2009-2025 Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

Proudly powered by WordPress