Category: Wage & Hour Litigation

By Gerald L. Maatman, Jennifer A. Riley, Anna Sheridan, and Elisabeth Bassani

Duane Morris Takeaways: On March 31, 2026, in Justin Lawrence, et al, v. Sun Energy Services LLC d/b/a/ Deep Well Services, 2:23-CV-02155 (W.D. Pa, March 31, 2026), Judge Christy Criswell Wiegand of the U.S. District Court for the Western District of Pennsylvania certified, but narrowed, a Rule 23 class action and FLSA collective action after narrowing the case to two of the three asserted theories and adding additional temporal restrictions. In a decision that threads the needle between plaintiffs’ ambition and Rule 23 reality, this is a strong reminder that courts will certify only what can be proven with common evidence, and nothing more.

Case Background

Plaintiff Justin Lawrence (“Lawrence” or “Plaintiff”) brought a hybrid action under the Fair Labor Standards Act (“FLSA”) and the New Mexico Minimum Wage Act alleging that oilfield company Deep Well Services failed to properly compensate employees in three ways, including: (1) by failing to pay for pre-shift travel to out of town jobsites; (2) by failing to compensate time spent in mandatory pre-shift safety meetings; and (3) by  excluding the bonuses paid to eligible employees when calculating employees’ rate of regular pay.

On October 15, 2024, the Court conditionally certified an FLSA collective action consisting of “current and former employees of Sun Energy Services LLC d/b/a Deep Well Services (“Deep Well”) who have worked in the United States as a Greenhat, Leadhand, Roughneck, or Snubbing Operator from [date certain three years prior to date of Notice] to the present and were not paid for out of town travel, were not paid for the time spent attending pre-shift safety meetings, or who did not have the amount of any quarterly bonus included in the calculation of their regular rate of pay in determining their overtime rate of pay.” Id. at *4. One hundred and fifty-five former or current employees opted in to the collective action.

The Court’s Decision

In a detailed 17-page opinion, Judge Weigand considered whether to certify the New Mexico claims as a class action (and/or to confirm final collective action certification under the FLSA) by analyzing the typicality, commonality, predominance, and superiority factors under each of the three theories put forth by Plaintiffs.

As an initial matter, the Court found that typicality was met for each claim. For Plaintiffs’ Travel Time and Bonus Computation claim, the Court held that commonality, predominance, and superiority were also met. This was found over Deep Well’s objection that the policy regarding payment of out-of-town travel changed in January 2025 allowing for payment of time spent driving to and from jobs but not time spent flying, making it difficult to calculate the amount of each class member’s damages. The Court found however that “differences in the amount of each class member’s damages are insufficient to defeat a finding that common issues predominate.” Id. at *9. The Court similarly found that since each individual member’s expected recover “is likely too meager to incentivize filing an individual action,”  “a class action is the superior method for adjudicating the travel time claim.” Id. at *9.

However, the Court was not convinced by Plaintiffs’ argument that “common evidence ‘binds together’ the putative class members’ claims regarding the pre-shift meetings.” Id. at *10. The Plaintiffs were unable to demonstrate a uniform policy of not paying employees for time spent in pre-shift safety meetings and relied only on deposition testimony that was contradicted elsewhere in the record. The Court also found that Plaintiffs would have to put forth individualized evidence to establish liability with respect to the safety meetings since Deep Well pays their employees an additional two hours of wages for every shift worked . The Court found that allowing the safety meeting claim to proceed as a class would result in countless mini-trials and found that Plaintiff failed to establish either superiority or predominance for the safety meeting claim.

Even after finding that two of the claims met all required elements to be certified, the Court found that the class definition was overly broad. The Court added a time constraint, narrowing the class definition to leave out the safety meeting claims, added language to narrow the class to “only those members whose claims are not barred by the applicable statute of limitations,” and distinguished normal commute time from out-of-town commuting time requiring an overnight stay.  Id. at 14.

Mirroring the ruling for the Rule 23 class certification motion, the Court gave final certification for the collective action relative to the time travel claim and the bonus claim. The Court found that the members of the collective action were similarly situated. Id. at 15. Although the Plaintiffs worked in four different positions, the Court found that they all performed similar enough functions to be found “similarly situated.” Most importantly, however, the Court reasoned that the members of the collective action “challenge the same uniform employer practices” of failing to pay for job time and failure to include the bonus into the regular rate of pay. Id. at 16. Even with the “considerably less stringent” similarly situated requirements under 29 U.S.C. § 216(b), the Court concluded that Plaintiff had failed to meet his burden under § 216(b) with respect to the safety meeting claim as there was no company-maintained general practice. As a result, the Court narrowed the collective action to the same class definition.

Implication for Companies

The Lawrence decision shows that courts are not passively evaluating certification – they are scrutinizing it based on the evidentiary record. The Court’s decision not to certify the class under the safety meeting theory shows that difference in how work is performed (across locations, supervisors, or time periods) can be powerful tools at certification, especially when it leads to individualized determinations. 

For employers, the message is clear: attack overbreadth early and often. Even if certification is not defeated outright, narrowing the class can materially reduce exposure.

By Gerald L. Maatman, Jr., Elizabeth Underwood, and Olga A. Romadin

Duane Morris Takeaways: On March 26, 2026, Judge Paul Engelmayer of the U.S. District Court for the Southern District of New York issued an order denying certification of a Fair Labor Standards Act (“FLSA”) collective action brought by a study coordinator alleging that his employer, a medical school, misclassified him and a group of similarly-situated individuals in Castillo, et al. v. Albert Einstein College of Medicine, Inc. et al., No. 24 Civ. 00984, 2026 WL 834712 (S.D.N.Y. Mar. 26, 2026). Following discovery, the Court found that a higher standard for the first step of the conditional certification process was warranted, and on review of evidence submitted by the defendants as well as the plaintiff, it declined to certify the collective action, concluding that the differences in coordinators’ duties precluded a collective action.

Case Background

Plaintiff, a researcher in the Cognitive Neurophysiology Laboratory of the Albert Einstein College of Medicine, a medical school based in New York, brought a collective action against the College and three related entities, including a teaching college and the schools’ parent corporations, alleging that they had misclassified study and research coordinators as “learned professionals” exempt from overtime under the FLSA. Id. at *3.

The College filed a motion to dismiss Castillo’s amended complaint in July 2024, arguing that it was not an “employer” under the FLSA and NYLL, but the Court found this unavailing and denied the motion, and the parties proceeded to discovery. Id. at *1. Castillo then moved for conditional certification under the FLSA, seeking to encompass a collective of current and former employees working as research and study coordinators for the College of Medicine and its related entities who he alleged were not compensated for overtime work. Id. Castillo also sought to toll the FLSA statute of limitations period and asked the Court to authorize notice to individuals employed by the defendants as far back as three years. Id.

 The District Court’s Decision

The Court found that, in light of the substantial discovery between the parties, the plaintiff faced a higher threshold requirement of making a “modest plus” factual showing in step one of the Second Circuit’s two-step process to certify a collective action under the FLSA, which it ruled Castillo had failed to meet because evidence submitted by both parties was not convincing that a collective of similarly-situated individuals existed. Id. at *5.

In its analysis, the Court noted that classifying a category of employees as learned professionals exempt under the FLSA is not, on its own, enough for a finding of a “common policy, plan, or practice” to find them to be “similarly situated.” Id. at 6. Plaintiffs have to show a uniform misclassification by identifying individuals with similar duties and responsibilities, and Castillo had failed to do so here because his reliance on two declarations and six job descriptions lacked the weight and detail necessary to account for the work of hundreds of individuals in dozens of departments and programs across the institutions. Id. at *7-8.

The Court was further swayed by the defendants’ evidence of substantial job descriptions showing a variety of duties and responsibilities both demonstrating variation and fitting into the learned professional exemption.  Id. at *8-9. Defendants produced 49 job descriptions demonstrating that coordinators’ duties ran the gamut—while some were primarily tasked with data collection, others were responsible for developing clinical studies, making medical recommendations, or engaging with patients—and had “differing levels of intellectual rigor” and educational requirements. Id. 

Finally, the Court found that Castillo’s reliance on the deposition testimony of the College’s vice president of human resources actually bolstered the defendants’ position that the duties and responsibilities of coordinators vary widely from one position to the next, undermining his argument that they are similarly situated and thus eligible for conditional certification. Id. at *10-11.

 Implications For Employers

This decision offers several practical takeaways for employers in fields where workers may fall under an FLSA exemption.  Employers are well-served by maintaining and cataloging detailed job descriptions that accurately reflect the duties and educational requirements of each position.

The Court’s decision also highlights the strategic value of the “modest plus” standard for defendants facing FLSA conditional certification motions.  Where pre-certification discovery has already taken place, defendants in many circuits may involve this heightened standard and submit their own evidence to demonstrate that putative class members are not similarly situated with respect to their job duties and requirements.

By Gerald L. Maatman, Jr., Gregory Tsonis, and George J. Schaller

Duane Morris Takeaways: On March 17, 2026, in People ex. rel. Ill. DOL v. Quality Therapy & Consultation, Inc., et al., 2026 Ill. App. Unpub. LEXIS 594 (1st Dist. 2026), the Illinois Appellate Court affirmed the circuit court’s decision finding corporate officers were not “employers” as defined in section 2 of the Illinois Wage Payment And Collection Act (“IWPCA”), the corporate officers had not knowingly permitted underpayments, and accordingly, the corporate officers were not liable under Section 13 of the IWPCA.  Justice Margaret S. McBride authored the opinion on behalf of the Appellate Court.

The decision in Quality Therapy protects corporate decision-makers from personal and strict liability where those decision-makers do not “knowingly permit” a corporation, or such an employer, to violate provisions of the IWPCA. 

Case Background

In 1996, Quality Therapy and Consultation, Inc. was founded by Frances M. Parise and John Parise (collectively “the Parises”).  Quality Therapy, 2026 Ill. App. Unpub. LEXIS 594,at *2.  Quality Therapy provided occupational therapy, speech therapy, and physical therapy services in Illinois to long-term care facilities.  Frances Parise acted as Quality Therapy’s president and secretary whereas John Parise was the chief executive officer, and each owned 50% of Quality Therapy and shared authority for business decisions.  Id. at *2-3. 

After Quality Therapy incurred substantial legal fees from a 2015 federal investigation into its Medicare billing practices and experienced a slow in payments from a primary client, the State of Illinois, Quality Therapy’s profit margins shifted into the negative.  Id. at *3-4.  In September 2017, Quality Therapy, as a result of the negative margins, could not meet its payroll obligations and issued a WARN Act notice to its employees, “advising that the business would close and all employment would cease in 60 days.”  Id. at *4. 

Thereafter Quality Therapy informed staff they would not receive their September wages and Quality Therapy was closing on September 30, 2017.  Id.  Throughout September, the Illinois Department of Labor (the “Department”) received the first of “93 wage applications from [former] employees that would eventually total $550,496, exclusive of statutory penalties.”  See id. at *5.

Quality Therapy relied on a bank line of credit to fund payroll on a timely basis, and after the Parises notified the bank that Quality Therapy was closing, the bank immediately called the corporation’s line of credit and froze all funds on hand.  Id.  Quality Therapy never regained control of its bank account and was unable to access any of its money to pay its employees.

Circuit Court Case Background

In December 2019, the Department filed a three-count complaint, which was later amended in February 2020, and directed individual counts against Quality Therapy, as well as Frances and John Parise, that each knowingly permitted Quality Therapy’s underpayments of unpaid wages and other compensation.  The Department maintained all three defendants met the definition of employer under the IWPCA.  Id. at *7.

Quality Therapy had been dissolved and was found in default.  The Parises moved for summary judgment on the amended complaint and argued that the Illinois’ Supreme Court decision in Andrews v. Kowa Printing Corp., 217 Ill. 2d 101 (2005), “precluded a corporate officer’s individual liability under section 2 of the Wage Act.”  Quality Therapy, 2026 Ill. App. Unpub. LEXIS 594, at *7-8.  The Department responded that “[the Parises] each acted directly or indirectly in [Quality Therapy’s] interest, which made them ‘employers’ within the meaning of section 2.” Id. at *8 

The circuit court denied summary judgment and then presided over a two-day bench trial focusing on Quality Therapy’s ability to pay.  Id.  The circuit court entered default judgment against Quality Therapy, but, the circuit court rejected “the Department’s argument that the Parises were ‘employers’” as defined in section 2 of the IWPCA, and found that “only [Quality Therapy] was the wage claimants’ employer under section 2.”  Id. at *8.  The circuit court also denied the claims against the Parises under section 2 and found “[t]he only proper [IWPCA] claim brought under the pleadings against [the Parises] is grounded in” section 13 of the IWPCA.  Id.  The circuit court reasoned that Frances and John Parise, as corporate officers of Quality Therapy, had not knowingly permitted the underpayments and were not liable under section 13 since Quality Therapy was incapable of meeting its payroll.  Id.  

The Department appealed on the grounds that “the circuit court erred in finding that the Parises were not employers with Section 2.” The Department acknowledged its argument on appeal ran contrary to the Illinois Supreme Court’s decision in Andrews, 217 Ill. 2d 101, but the Department contended that the 2011 amendment to section 13 of the IWPCA “impliedly amended section 2 [of the IWPCA] and superseded Andrews.” Quality Therapy, 2026 Ill. App. Unpub. LEXIS 594, at *9.

The Appellate Court Decision

The Appellate Court affirmed the circuit court’s holding that the Parises were not employers within section 2 of the IWPCA.  The Appellate Court, applying the Andrews precedent and interpreting “the statutory language,” concluded “that the amendment to section 13 had no effect whatsoever on section 2” of the IWPCA.  Id. at *11.

The Appellate Court rejected the Department’s argument that the 2011 amendment to the IWPCA blended sections 2 and 13 such that it “would render anyone who had a decision making role in payment decisions personally liable for unpaid wages and final compensation.”  Id. at *9.  The Appellate Court explained the two sections contained distinct definitions, standards, and terms, and presumed that “the legislature did not intend, inconvenient, absurd, or unjust consequences.”  Id. at *10. 

The Department’s appeal focused on the last clause of section 2 stating that “any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee” is deemed an “employer” for purposes of the IWPCA.  Id. at *11 (quoting 820 ILCS § 115/2).  The Department asserted the last clause of section 2 should be read “in conjunction with section 13.” 

At issue was the underlined language, added to section 13 in the 2011 amendment:

“In addition to an individual who is deemed to be an employer pursuant to section 2 of this Act, any officers of a corporation or agents of an employer who knowingly permit such employer to violate the provisions of this Act shall be deemed to be the employers of the employees of the corporation.”  820 ILCS § 115/13.

The Appellate Court disagreed that the 2011 amendment to section 13 “effectively modified section 2 and dramatically changed a corporate decision maker’s potential liability for wages.”  Id. at *11-12.  The Appellate Court reasoned that the IWPCA imposes liability on “two separate and distinct definitions of ‘employer’” because “[i]f there was no distinction between the liability of the corporation and the individual officer, then there would be no reason to have two separate definitions of what constitutes an ‘employer.’”  Quality Therapy, 2026 Ill. App. Unpub. LEXIS 594at *12-13 (citing Elsener v. Brown, 2013 IL App (2d) 1209209 ¶ 66).

The Appellate Court also rejected the Department’s expansive interpretation of section 2 and section 13 as “unpersuasive.”  Id. at *13.  Notably, the Appellate Court cited the Illinois Supreme Court’s language in Andrews, which acknowledged “the breadth of the language” in section 2 was “confounding” because when read literally, it would “make an ‘employer’ out of every person who possesses even a modicum of authority over another employee, from the CEO to the head of the maintenance staff, as such persons undeniably act ‘directly or indirectly in the interest of an employer in relation to an employee.’”  Andrews, 217 Ill 2d. at 107.  Accordingly, following the Illinois Supreme Court, the Appellate Court opined that “[a] literal reading [of that clause] would result in absurdity or unjustness in part because of an employer’s strict liability for wages.”  Quality Therapy, 2026 Ill. App. Unpub. LEXIS 594at *13. 

Various other reasons supported the Appellate Court’s decision.  Andrews, the Appellate Court noted, has been consistently applied without “any court or litigant suggesting that the analysis was abrogated by the amendment to section 13 that took effect in 2011.”  Id. at *16 (collecting cases following Andrews.)  Additionally, the Appellate Court noted that the legislature’s drafted language across both relevant sections of the IWPCA were not constructed with “parallel wording” nor a declaration of an intent to change section 2’s meaning for the phrase “any person or group of persons.”  Id. at *18.  Following the Department’s interpretation of the IWPCA, the Appellate Court reasoned, would upend “well-established principles of corporate law” and “create personal liability for shareholders, officers, managers, and supervisory employees, regardless of the precision with which corporate formalities are observed, and would remove the fundamental protections afforded by long-standing principles of corporate law.”  Id. at *21-22.

Consequently, the Appellate Court found “the amendment to section 13 maintains the framework of the [IWPCA] – it did not alter the general definition set out in section 2 nor did it modify liability under section 13.”  Id. at *20. 

Finally, the Appellate Court also dismissed the Department’s “new argument on appeal” that it could rely on a self-adopted regulation “which blends sections 2 and 13 based on the Department’s reading of the amendment.”  Id. at *22.  The Appellate Court found the Department’s interpretation was not well founded and the regulation was “also flawed because it is not based on the new, clear prefatory clause in section 13.”  Id. at *26-27.

Accordingly, the Appellate Court affirmed the circuit court’s judgment.

Implications For Employers

Quality Therapy draws a line in the sand delineating when a corporate decisionmaker meets the definition of “employer” under section 2 of the IWPCA.  The Appellate Court relied on longstanding Illinois Supreme Court precedent to find the 2011 amendment to section 13 of the IWPCA did not alter the scope of section 2 of the IWPCA.  

Employer’s facing claims for violations of the IWPCA must ensure they comply with the payment provisions of the IWPCA.  However, protections for corporate-decision makers remain intact, and merely being in a decision-making role with respect to payment decisions is insufficient to establish personal liability for unpaid wages and final compensation under the IWPCA. 

Instead, Quality Therapy establishes that only those corporate decision makers who “knowingly permit” an employer to violate provisions of the IWPCA shall be also deemed an “employer of the employees of the corporation” pursuant to section 13 of the IWPCA.

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Tyler Zmick

Duane Morris Takeaways:  In Johnson, et al. v. Amazon.com Services, LLC, 2026 IL 132016 (Mar. 19, 2026), the Illinois Supreme Court held that unlike the federal Fair Labor Standards Act (“FLSA”), Illinois’s Minimum Wage Law (“IMWL”) requires employers to compensate hourly employees for time spent completing pre-shift COVID-19 screenings and other “preliminary or postliminary” activities. In doing so, the Illinois Supreme Court embraced an employee-friendly interpretation regarding the scope of compensable time under the IMWL. Johnson is a must-read opinion for companies that impacts all employers with hourly, non-exempt employees working in Illinois.

Background

Plaintiffs were former hourly Amazon employees who worked at the company’s distribution warehouses in Illinois. In March 2020, in response to the COVID-19 pandemic, Amazon began requiring employees to undergo COVID-19 symptom screenings before they could enter the warehouses and clock in for their shifts. According to Plaintiffs, it “took 10 to 15 minutes on average” to complete the pre-shift screenings. See Johnson, 2026 IL 132016,¶ 4.

Plaintiffs subsequently filed a class action lawsuit alleging that Amazon violated the FLSA and IMWL by not paying them and other warehouse employees for time spent undergoing the mandatory screenings.

Amazon moved to dismiss Plaintiffs’ Complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiffs’ claims failed because under the FLSA an hourly employee need not be compensated for time spent on “activities which are preliminary to or postliminary to” the employee’s principal work duties. See 29 U.S.C. § 254 (a)(2). In granting Amazon’s motion and dismissing Plaintiffs’ FLSA and IMWL claims, the U.S. District Court for the Northern District of Illinois reasoned that “state and federal courts frequently look to case authority interpreting and applying the FLSA for guidance in interpreting the [IMWL].” Johnson, 2026 IL 132016,¶ 7.

Plaintiffs appealed to the U.S. Court of Appeals for the Seventh Circuit. Rather than ruling on the substance of the appeal, however, the Seventh Circuit certified the following question to the Illinois Supreme Court: “whether Section 4a of [the IMWL] incorporates the [FLSA’s] exclusion from compensation for ‘employee activities that are preliminary or postliminary to their principal activities.’” Id. ¶ 1.

The Illinois Supreme Court’s Decision

The Illinois Supreme Court began its analysis by noting that the IMWL provides “a right of overtime compensation for Illinois employees” and also sets forth 10 “specific exceptions to the general right to overtime compensation.” Johnson, 2026 IL 132016,¶ 12 (citing 820 ILCS 105/4a(1)-(2)). Importantly, the Court observed that four of Section 4a(2)’s 10 exceptions incorporate certain provisions of the FLSA and/or related federal regulations, yet none of the exceptions reference FLSA regulations regarding the exclusion of “preliminary or postliminary activities” from the definition of compensable time. See id. ¶¶ 14, 16.

The Illinois Supreme Court further noted that the IMWL gives the Illinois Director of the Department of Labor (“IDOL”) authority to define the IMWL’s terms. See 820 ILCS 105/10(a). Pursuant to that authority, IDOL promulgated a regulation defining “hours worked” as “all the time an employee is required to be on duty, or on the employer’s premises, or at other prescribed places of work, and any additional time the employee is required or permitted to work for the employer.” 56 Ill. Adm. Code 210.110. In addition to acknowledging the breadth of this definition, the Illinois Supreme Court emphasized that while IDOL referenced provisions of the FLSA and related federal regulations in certain statutory definitions, IDOL did not reference the FLSA regulations “that establish a preliminary or postliminary activities exclusion from ‘hours worked.’” Johnson, 2026 IL 132016 ¶ 16; see also id. (“To the contrary, IDOL defines ‘hours worked’ to include all time an employee is required to be on the employer’s premises, which contradicts the potential applicability of any such exclusion.”).

Accordingly, the Illinois Supreme Court held that a plain reading of Section 4a and IDOL’s definition of “hours worked” reveals that the Illinois legislature did not incorporate the FLSA’s “preliminary and postliminary activities exclusion” into the IMWL. Rather, the legislature delegated the authority to define “hours worked” to IDOL, who “adopted a definition of ‘hours worked’ that necessarily includes preliminary and postliminary activities, explicitly encompassing all time that an employee is required to be on an employer’s premises.” Id. ¶ 18.

In so holding, the Illinois Supreme Court rejected Amazon’s argument that the FLSA’s “preliminary and postliminary activities exclusion” should apply to the IMWL because the IMWL’s general overtime provision “is patterned after the general overtime provision found in…the FLSA.” Id. ¶ 19. The Court reasoned that “while section 4a of the [IMWL] contains the same general overtime provision of the FLSA, it does not include the preliminary and postliminary activity exclusion that is set forth in the FLSA….[T]o accept Amazon’s invitation would be to read exceptions into the statute that depart from its plain language, in violation of our well-established rules of statutory interpretation.” Id. ¶ 20.

Implications Of The Decision

The Illinois Supreme Court’s opinion in Johnson is required reading for companies with hourly employees working in Illinois. The decision definitively answers the question whether the IMWL incorporates the FLSA’s “preliminary or postliminary activities exclusion” – a question that, until now, has been heavily litigated.

Johnson is also a reminder of the importance of complying with federal and state wage-and-hour statutes, as laws in many jurisdictions (including Illinois) impose additional requirements on employers that are not found in the FLSA. See, e.g., Johnson, 2026 IL 132016, ¶ 20 (noting that the overtime provisions of the IMWL and the FLSA “are not parallel but rather state the same general rule with marked differences in their respective statements of exceptions”). Companies must be vigilant to ensure they comply with wage-and-hour laws in all jurisdictions where they have hourly employees.

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

Duane Morris Takeaways:  In a significant decision issued on March 6, 2026, Judge Neil H. Cohen of the Circuit Court of Cook County, Illinois, held that Section 67 of the Illinois Day and Temporary Labor Services Act (“DTLSA”), 820 ILCS 175/67, is unconstitutional because it improperly authorizes private parties to enforce the statute in a manner that usurps the constitutional authority of the Illinois Attorney General. The ruling arose in Figueroa, et al. v. Visual Pak Holdings, LLC, et al., No. 2025 CH 04411 (Cir. Ct. Cook County Mar. 6, 2026), and can be found here.

The court concluded that the statute’s “interested party” enforcement provision effectively creates a qui tam-style enforcement mechanism without the safeguards that preserve the Attorney General’s control over litigation brought on behalf of the State.  Because the statute does not require notice to the Attorney General and gives the Attorney General no authority to intervene, control, dismiss, or settle such cases, the court held that the provision violates the Illinois Constitution.  The ruling could significantly affect the growing wave of DTLSA litigation brought by worker advocacy organizations and may reshape how the statute is enforced going forward.

Background On The Day And Temporary Labor Services Act And Figueroa Lawsuit

The Illinois Day and Temporary Labor Services Act, 820 ILCS 175/1 et seq., regulates staffing agencies that provide temporary or day laborers to client companies. The statute imposes obligations on staffing agencies and the client companies that utilize temporary labor.  These obligations include registration requirements, disclosure rules governing job assignments, and compliance with wage and safety protections designed to regulate the temporary labor industry.

In recent years, amendments to the statute expanded its scope and enforcement mechanisms, including provisions mandating equal pay to equivalent permanent employees, safety training, recordkeeping and disclosure requirements, and joint compliance obligations between staffing agencies and the companies that receive temporary workers.

Central to the dispute in Figueroa was Section 67 of the statute, which authorizes enforcement actions by so-called “interested parties.” The statute defines an “interested party” broadly as “an organization that monitors or is attentive to compliance with public or worker safety law, wage and hour requirements, or other statutory requirements.”  820 ILCS 175/5.   Under Section 67, these organizations may file civil actions after providing notice to the Illinois Department of Labor and certain requirements are met, and can seek injunctive relief to compel compliance with the statute even if the organization itself did not employ the workers and did not suffer a direct injury.  Pursuant to Section 67(d) of the DTLSA, an “interested party” that prevails in a civil suit can recover 10% of any statutory penalties awarded, as well as attorneys’ fees and costs. 

The Figueroa litigation was brought by temporary workers and the Chicago Workers’ Collaborative (“CWC”), a nonprofit worker advocacy organization, alleging violations of the DTLSA by the defendants. The defendants moved to dismiss CWC’s claims in the complaint, asserting that CWC lacks standing to bring suit because its standing is based Section 67 of the DTLSA, which is unconstitutional.  The defendants also moved to dismiss the individual plaintiffs’ claims and challenged venue in Cook County, as CWC is the only entity located in Cook County and the defendants and employee plaintiffs are located in Lake County, Illinois.  

Because the challenge implicated the constitutionality of a state statute, the Illinois Attorney General intervened in the case to defend the law.

The Court’s Decision

After first establishing that CWC lacked associational standing that would allow it to bring claims, the court turned to assessing the constitutionality of Section 67, on which CWC’s standing relied.

The court first analyzed whether Section 67 of the DTLSA is a “qui tam” statute.  Under a “qui tam” enforcement mechanism, private parties may bring lawsuits on behalf of the government and receive a portion of the penalty recovered.  “Qui tam” statutes are not inherently unconstitutional, but typically contain procedural safeguards that ensure the government retains ultimate control over the litigation.  Although the Attorney General “argue[d] that section 67 is not a qui tam statute,” the court noted that the Attorney General took the opposite position in another case, Staffing Services Association of Illinois v. Flanagan, Case No. 1:23-cv-16208 (N.D. Ill).  Ultimately, because the State, and not the interested party, is the entity with “an actual and substantial interest” in the action, the court had little difficulty concluding that “Section 67 is a qui tam statute.”  Id. at 5.  

Next, the court turned to whether Section 67 of the DTLSA improperly usurps the power of the Attorney General to represent the state.  Under the Illinois Constitution, the Attorney General serves as the State’s chief legal officer and possesses the authority to enforce state law on behalf of the public.  While the legislature may create private rights of action, it cannot enact statutes that effectively transfer the State’s enforcement authority to private actors.  Qui tam statutes found constitutional, such as the False Claims Act, “provide for control over the litigation by the Attorney General by granting the Attorney General authority to intervene at any time, authority to control the litigation. and the authority to dismiss or settle the litigation at any time regardless of the wishes of the qui tam plaintiff.”  Id. at 5. 

By contrast, the court concluded, the DTLSA contains none of those safeguards.  Section 67 does not require notice to the Attorney General when an interested party files suit, nor does it give the Attorney General authority to intervene, take control of the case, or dismiss or settle the action. The statute therefore allows private organizations to pursue enforcement litigation entirely independent of the State. 

The Attorney General argued that such explicit authority over suits was unnecessary in the statutory text of the DTLSA, as the Attorney General Act provides the Attorney General with authority to intervene, initiate, and enforce any proceedings concerning “the payment of wages, the safety of the workplace, and fair employment practices.”  Id. at 6 (quoting 15 ILCS 205/6.3(b)).   The court, however, noted that the DTLSA does not require an “interested party” to provide the Attorney General with notice that it filed a suit under Section 67, and thus the Attorney General “cannot exercise its authority to represent the State if it has no notice of the filing of suit under Section 67” of the DTLSA.  Id. at 6.  As a result, the court held, the lack of notice “renders section 67 an unconstitutional usurpation of the Attorney General’s authority[.]”  Id. at 6.

Although the failure to provide notice was sufficient to find Section 67 unconstitutional, the court also held that Section 67 was also unconstitutional on the separate grounds that it “does not grant the Attorney General any control over the interested party’s suit.”  Id.  The court found unpersuasive the argument that the Attorney General Act provides the Attorney General with the right to intervene, reasoning that “[a] right to intervene is not the same as a right to control the litigation, including the right to dismiss that litigation over the objections of the plaintiff.  Id.   Because the statute allows private actors to enforce public rights without oversight or control by the Attorney General, the court concluded that Section 67 improperly interferes with the Attorney General’s constitutional authority and is therefore unconstitutional. 

Because Section 67 was found unconstitutional, the court dismissed CWC’s claims for lack of standing and the case was appropriately transferred to a proper venue in Lake County, which could properly consider the arguments for dismissal of the individual plaintiffs.

Implications For Employers

The Figueroa decision could significantly affect the enforcement landscape under the DTLSA, though it is likely to face appellate review.   Employers operating in Illinois should therefore closely monitor further developments as the courts continue to address the scope and enforcement of the statute.

In recent years, worker advocacy organizations have increasingly relied on Section 67 to bring enforcement actions seeking injunctive relief against staffing agencies and the companies that utilize temporary labor.  By holding that provision unconstitutional, the decision calls into question the viability of those lawsuits and may substantially limit the ability of advocacy groups to initiate DTLSA litigation.  As a result, the ruling may shift enforcement of the statute more squarely toward state regulators, including the Illinois Department of Labor and the Attorney General’s Office.  While this could reduce the number of private enforcement actions filed by advocacy organizations, employers should expect that regulatory authorities will continue to scrutinize staffing practices and DTLSA compliance. 

Finally, employers should not interpret the ruling as diminishing the importance of DTLSA compliance.  Importantly, the decision does not invalidate the DTLSA itself, but strikes only the statute’s “interested party” enforcement mechanism as unconstitutional.  The statute’s substantive requirements remain in effect, including the provisions governing wage protections, safety obligations, and responsibilities shared between staffing agencies and client companies.  Staffing agencies and employers that utilize temporary labor should continue to review their staffing arrangements and compliance practices carefully.

By Gerald L. Maatman and Anna Sheridan

Key Takeaways: In Amazon.com Services, LLC v. Malloy, 141 Nev. Adv. Op. 50 (Oct. 30, 2025), the Nevada Supreme Court resolved an important certified question affecting wage-and-hour litigation statewide – it ruled that Nevada’s wage laws do not incorporate the federal Portal-to-Portal Act’s (“PPA”) broad exclusions for preliminary and postliminary activities. The ruling arose in the context of Amazon’s mandatory pre-shift COVID-19 testing policy during the pandemic, under which employees alleged unpaid time for required health screenings. Because Nevada has not adopted the PPA, the Court held that these federally recognized exemptions are not available to employers as a categorical defense under state law. However, the Nevada Legislature acted almost immediately, enacting SB 8 in a special session just weeks later to expressly import PPA style exemptions into the state law.

Case Background

Nevada Resident Dwight Malloy, a warehouse employee at an Amazon fulfillment center, filed a putative class action in the U.S. District Court for the District of Nevada alleging that Amazon violated NRS 608.016 by requiring workers to undergo mandatory health screenings without paying them for the time spent completing these protocols. He alleged that the mandatory COVID-19 testing before each shift added several minutes of unpaid time. Relying on Nevada’s broader state constitutional wage protections, Malloy brought a proposed class action seeking compensation for all employees subjected to this COVID-19 testing.

Amazon moved to dismiss, urging the district court to apply the Portal-to-Portal Act and treat the testing as non-compensable preliminary activity. Under the PPA, federal law excludes from the definition of compensable work time activities “preliminary to” or “postliminary to” an employee’s principal duties. Amazon argued that Nevada has historically mirrored the FLSA and that the PPA’s framework should follow. The district court disagreed, concluding that Nevada law had not incorporated the PPA and that mandatory testing time was compensable. Faced with competing interpretations of the statute and no controlling Nevada precedent, the federal court invoked Nevada Appellate Procedure Rule 5 and certified the central question to the Nevada Supreme Court. The Nevada Supreme Court accepted the certified question, setting the stage for a definitive interpretation of NRS 608.016.

The Nevada Supreme Court’s Ruling

Justice Ron Parraguirre authored the opinion of the Nevada Supreme Court and began by reframing the certified question to ensure a precise answer. The opinion was clear that the Supreme Court would decide only “whether Nevada’s wage-hour laws incorporate the exceptions to compensable ‘work’ that are laid out in the PPA.” Id. at 1-2. That focus on the exceptions drove the Supreme Court’s analysis.

Although Nevada’s wage laws often “mirror the FLSA,” the Supreme Court emphasized that its prior decisions have repeatedly refused to follow federal law where the texts diverge. Amazon.com Servs., LLC v. Malloy, 141 Nev. Adv. Op. 50, 2025 WL 3032215, at 2 (2025). This case, the Supreme Court explained, was one of those moments. The PPA provides a sweeping “catchall” set of exclusions for any activity deemed preliminary or postliminary. Id. at 4. Nevada’s statutes, by contrast, contain only “narrow and specific exceptions,” such as those enumerated in NRS 608.0195 and NRS 608.215. Id.

The Supreme Court stressed the structural mismatch: the PPA creates a broad outer boundary of non-compensable time, whereas Nevada’s Legislature chose not to include any analogous, general preliminary-activity exemption. The opinion makes the legislative intent point explicit: “The plain language of NRS Chapter 608 does not evince legislative intent to mirror the PPA, and the PPA’s broad exceptions do not correspond with the narrow and specific exceptions Nevada provides.” Id.

The Supreme Court also observed that the Legislature has amended Nevada’s wage-and-hour provisions “on multiple occasions” to align certain terms with federal law when it wished to do so—yet it never added PPA-style text or referred to preliminary or postliminary activities. Id. at *5. In other words, the Legislature knew how to adopt the PPA and simply chose not to.

Based on this textual and structural analysis, the Supreme Court answered the certified question “in the negative.” Id. Nevada has not incorporated the PPA’s exceptions, and employers cannot rely on them to avoid paying for required pre-shift tasks.

Notably, the Supreme Court did not resolve whether COVID testing is necessarily compensable in every scenario. Instead, the ruling’s effect is to eliminate the PPA as a categorical shield. Whether a specific pre-shift activity is compensable will depend on Nevada’s own definition of “work,” not federal carve-outs.

Implications for Employers

Although Malloy was quickly overtaken by legislative action, its interpretive significance cannot be overstated. For roughly two weeks, Malloy dramatically broadened the scope of compensable time under Nevada law by removing the federal preliminary/postliminary framework entirely. Employer groups immediately warned that the ruling could expose businesses to retroactive claims for any mandatory pre- or post-shift activity — health screenings, safety checks, clock-in delays, security gates, equipment pickups, or similar tasks.

In mid-November 2025, the Nevada Legislature enacted SB 8, expressly adding PPA-style exemptions into NRS Chapter 608 and applying them retroactively. The Governor signed it into law on November 20, and it took immediate effect. That legislation largely neutralized the backward-looking exposure that Malloy might have created. However, SB 8 itself carries a 2029 sunset, meaning Nevada may revisit the issue in future sessions. If SB 8 lapses or is modified, Malloy’s reasoning will again guide courts in interpreting Chapter 608.

Even with SB 8 in place, Malloy is a consequential decision for Nevada employers. It clarifies that Nevada’s wage statutes stand on their own terms and will not absorb federal exemptions absent explicit legislative action. Employers with Nevada operations should ensure that any required pre- or post-shift activity is properly categorized, measured, and recorded — and should keep a close eye on the evolving legislative environment as the 2029 sunset approaches.

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Kathryn Brown

Duane Morris Takeaways: In Arble v. East Ohio Gas Company, et al., No. 5:24-CV-747 (N.D. Ohio Nov. 3, 2025), Judge Benita Y. Pearson of the Northern District of Ohio denied the plaintiffs’ motion for court-facilitated notice to potential opt-in plaintiffs based on application of the Sixth Circuit’s “strong likelihood” standard for FLSA certification. As a result of the court’s ruling, the lawsuit will proceed based on the claims of only three plaintiffs. The decision is essential reading for defendants in the Sixth Circuit seeking to defeat a motion for certification of FLSA claims.

Case Background

Plaintiff filed a complaint on April 26, 2024, on behalf of a putative class and collective action of call center employees against an energy company that provides services throughout Ohio and the United States.

Plaintiff contended that the defendant had an unlawful practice of failing to pay wages to call center employees for time spent logging on and booting up their computer systems. She alleged that as a result of “off the clock” work prior to the start time of the shift, she and other call center workers worked in excess of 40 per workweek without receiving overtime pay. Plaintiff asserted claims of unpaid overtime in violation of the Fair Labor Standards Act and Ohio law.

Two other call center employees filed consent forms to become opt-in plaintiffs in the lawsuit.

On April 1, 2025, Plaintiffs filed a motion for court-facilitated notice to potential opt-in plaintiffs for purposes of their collective action per the FLSA.  Defendants responded in opposition on April 22, 2025. The Court denied the motion as moot after granting Plaintiff’s separate motion to amend the complaint to add a party.  

On July 11, 2025, Plaintiffs filed an amended motion for court-facilitated notice to a putative nationwide collective action of call center workers. Defendants responded in opposition on August 1, 2025. Plaintiffs did not file a reply in further support of the motion.

As Ohio law no longer permits plaintiffs to pursue class action (opt-out) claims for unpaid overtime under Ohio state law, the Plaintiffs’ motion addressed only the standard for court-facilitated notice of FLSA claims to potential opt-in plaintiffs. See Ohio Rev. Code 4111.10(C).

The Court’s Ruling

The Court explained the standard for court-facilitated notice of FLSA claims under the pivotal decision of the Sixth Circuit in Clark v. A&L Homecare & Training Ctr., LLC, 68 F.4th 1003 (6th Cir. 2023). In Clark, the Sixth Circuit abandoned the familiar two-step framework for conditional certification under the FLSA. In its place, the Sixth Circuit announced a new standard for facilitating notice to potential opt-in plaintiffs pursuant to 29 U.S.C. § 216(b) of the FLSA. Under the new standard, plaintiffs must demonstrate a “strong likelihood” that they are similarly situated to others with a showing “greater than the one necessary to create a genuine issue of material fact, but less than the one necessary to show a preponderance.” See Clark, 68 F.4th at 1010.

Upon application of the Clark standard, the Court concluded Plaintiffs fell far short of meeting their evidentiary burden to receive court-facilitated notice of their claims to others. The Court highlighted three primary deficiencies in Plaintiffs’ motion.

First, the Court found the Plaintiffs’ sworn declarations insufficient to show similarity to any other call center workers.  The declarations failed to identify any other call center workers by name, failed to state any dates when Plaintiffs allegedly saw others performing pre-shift work, failed to explain how Plaintiffs knew that others experienced violations of the FLSA, and failed to connect Plaintiffs’ observations to any broader set of call center workers employed by Defendants inside or outside Ohio.  

Next, the Court roundly rejected Plaintiffs’ reading of an employee handbook policy applicable to call center workers. Plaintiffs contended that a policy stating that workers must be on time and available to start work at the beginning of their shift supported their claims of widespread “off the clock” work in violation of the FLSA. The Court reasoned that a mere requirement for employees to be on time for work did not run afoul of the FLSA. Therefore, nothing on the face of the policy warranted court-supervised notice, nor did Plaintiffs explain how the policy proves a violation as to all potential opt-in plaintiffs.

Finally, the Court found no basis in the record to send notice to the membership of a nationwide collective action. Plaintiffs, who each worked in Ohio, presented no evidence of how Defendants staffed or managed any call center outside of Ohio.

The Court reasoned that absent evidence linking Plaintiffs’ allegations to other call center workers, facilitating notice to potential opt-in plaintiffs “would amount to claim solicitation that the Court declines to undertake.” Id. at 6.

Having concluded that no basis existed to expand the scope of Plaintiffs’ claims to potential opt-in plaintiffs under the Clark standard, the Court ordered that the case would proceed based on the claims of three Plaintiffs alone.

Implications For Defendants

In FLSA collective action litigation, the disposition of a motion for notice to potential opt-in plaintiffs is a central inflection point. The Court’s ruling in Arble illustrates the opportunity afforded to defendants in the wake of Clark to shrink the scope of an FLSA lawsuit by dissecting the purported evidence of similarity between the named plaintiff and other employees. Where plaintiffs rely on vague and conclusory allegations of widespread unlawful pay practices, defendants have an opportunity to defeat the plaintiffs’ efforts to expand the universe of party plaintiffs in the case, and thereby gain significant leverage in the lawsuit. Corporate counsel defending similar FLSA claims of unpaid overtime on behalf of a putative collective action ought to take note of the Court’s reasoning in Arble when preparing their defense strategy.

As the Northern District of Ohio’s ruling in Arble reflects, the Sixth Circuit’s “strong likelihood” standard under Clark poses a formidable hurdle for plaintiffs to overcome to obtain court-sanctioned notice to potential opt-in plaintiffs.

By Gerald L. Maatman, Jr., Jennifer A. Riley, and Ryan T. Garippo

Duane Morris Takeaways:  On October 20, 2025, in Flower Foods, et al. v. Brock, No. 23-0936 (U.S.), the U.S. Supreme Court granted a writ of certiorari to decide whether last-mile delivery drivers are considered transportation workers, and thus exempt under the Federal Arbitration Act (the “FAA”), when the driver’s route is purely intrastate. 

The decision will have sweeping implications for logistics companies and any business employing delivery drivers across the country.

Case Background

Flower Foods, Inc. (“Flower Foods”) operates one of the largest bakery companies in the United States.  Under Flower Foods’ business model, the company contracts with independent distributors who purchase the rights to distribute products in specific territories.  The delivery-driver distributors “stock shelves, maintain special displays, and develop and preserve positive customer relations.”  Brock v. Flower Foods, Inc., 121 F. 4th 753, 757 (10th Cir. 2024).  Flower Foods “produces and markets the baked goods.”  Id.

Flower Foods delivers the products it produces, via these delivery-driver distributors, who are classified as independent contractors under the Fair Labor Standards Act (the “FLSA”).  These products are usually produced in out-of-state bakeries, but then shipped to a local warehouse, where the local delivery driver picks them up to sell retail stores.  This process is more commonly known as “last-mile delivery.”  Plaintiff Angelo Brock (“Plaintiff or “Brock”), through his company Brock, Inc., was one of those delivery drivers.  When Brock started delivering Flower Foods’ products, he entered into a Distributor Agreement that contained a “Mandatory and Binding Arbitration” clause, which required nearly all disputes to be arbitrated under the FAA.  Id. at 758.

Nonetheless, Brock filed a putative collective and class action under the FLSA, and Colorado labor law, claiming that Flower Foods misclassified him and other delivery-driver distributors as independent contractors.  As a result, Flower Foods moved to compel arbitration, but the U.S. District Court for Colorado denied its request.  The District Court concluded that Brock fell within the ‘‘transportation workers exemption” of the FAA, which exempts transportation workers engaged in interstate commerce from arbitration.  The District Court reasoned that, although Brock did not cross state lines, he ‘‘actively engaged in the transportation of [the company’s] products across state lines into Colorado” and thus was covered by the exemption.  Id. at 759.  Flower Foods appealed that decision to the U.S. Court of Appeals for the Tenth Circuit.

The Lower Court Opinion

On appeal, and on November 12, 2024, Judge Gregory Phillips, writing for the U.S. Court of Appeals for the Tenth Circuit, affirmed the District Court’s decision that delivery-driver distributors were exempt from the FAA.  Judge Phillips explained that, although Brock’s routes were entirely within Colorado, a transportation worker need not cross state lines to qualify for the exemption.  Instead, individuals qualify as transportation workers if they play a direct and necessary role in the interstate flow of goods.

Relying on decisions from the First and Ninth Circuits, which also concluded “that last-mile delivery drivers . . . who make the last intrastate leg of an interstate delivery route . . . are directly engaged in interstate commerce,” the Tenth Circuit reached the same conclusion.  Id. at 762.  The Tenth Circuit explained that “[b]oth [other] circuits focused on whether the goods moved in a continuous interstate journey or as part of multiple independent transactions.”  Id.  Thus, the flow of interstate commerce did not stop when “Brock start[ed] the interstate delivery process by placing orders for products produced in out-of-state bakeries” and Flower Foods “deliver[ed] the products to the agreed-upon warehouse,” only for Brock to “load the products at the warehouse onto his vehicle and deliver[] the goods to retail stores on his intrastate delivery route” within one day.  Therefore, Brock and other delivery-driver distributors were exempt under the FAA even though they did not cross state lines.  But, Flower Foods decided to ask the U.S. Supreme Court to take a third look at the issue.

On October 20, 2025, the U.S. Supreme Court agreed to hear the case, without a making any other comment, in its two-word order holding “certiorari granted.” 

In some ways, this decision is not surprising as the U.S. Supreme Court has decided two recent cases under the transportation worker exemption:  Sw. Airlines Co. v. Saxon, 596 U.S. 450 (2022), and Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246 (2024).  The decision in Brock, however, is poised to be the most impactful of all three of the cases.

Implications For Employers

The importance of the ultimate decision in Brock cannot be overstated.  In both Saxon and Bissonnette, the U.S. Supreme Court dramatically expanded the reach of the transportation worker exemption making it increasingly difficult for employers to move to compel arbitration in class and collective actions brought by workers in logistics-adjacent positions

If workers who engage in wholly intrastate commerce fall within the exemption’s reach, it may require a fundamental re-structuring of many employers’ arbitration programs.  In contrast, if these workers and independent contractors are not exempt from the requirements of the FAA, then employers may finally be able to rest easy knowing that their arbitration defenses remain viable for at least a portion of their workforce.

Although only time will tell what the U.S. Supreme Court will decide, corporate counsel should follow this blog for updates because the authors will be watching this case closely.   Oral arguments are likely to occur during Fall 2025 and a decision will follow in Spring 2026.