Category: Wage & Hour Litigation

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.

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

Duane Morris Takeaways:  In Lundeen v. 10 West Ferry Street Operations, LLC, No. 24-3375 (3d Cir. Oct. 16, 2025), the U.S. Court of Appeals for the Third Circuit held that the opt-in requirement set forth in Section 216(b) of the federal Fair Labor Standards Act (“FLSA”) does not prohibit plaintiffs in a class action from settling prospective class members’ unasserted FLSA claims as part of an opt-out class settlement. In a precedential and unanimous opinion, the Third Circuit concluded that Section 216(b) establishes only the mechanism by which FLSA claims may be litigated, not the conditions under which they may be released. The decision is welcome news for both plaintiffs and defendants, as the case makes it easier for parties to settle “hybrid” cases asserting claims under both federal and state wage-and-hour laws.

Background

Plaintiff Graham Lundeen alleged that Defendant – his former employer, and the owner of a restaurant and bar – violated the FLSA and the Pennsylvania Minimum Wage Act (“PMWA”) in connection with its tip-pooling practices. Plaintiff styled his case as a “hybrid” class/collective action, asserting that his FLSA claim should proceed as a collective action under Section 216(b) and that his PMWA claim should proceed as a class action under Federal Rule of Civil Procedure 23(b)(3).

The parties reached a settlement under which class members would agree to release their claims, including those arising under the FLSA, even if class members did not submit claim forms, submit opt-in consent forms, or receive settlement payouts.

The U.S. District Court for the Eastern District of Pennsylvania denied preliminary approval of the proposed settlement, ruling that the settlement “was ‘neither fair nor reasonable’ because it ‘require[d] class members who did not opt in to the FLSA collective to release their FLSA claims.’” Id. at 6.

The Third Circuit’s Decision

After accepting the parties’ interlocutory appeal, the Third Circuit vacated the District Court’s ruling and held that Section 216(b) does not bar approval of a Rule 23 settlement that includes the release of “unasserted FLSA claims.” Id. at 10-11. In reaching its conclusion, the Third Circuit began with the text of Section 216(b):

An action to recover the liability prescribed in the preceding sentences [for failure to pay statutorily required overtime or minimum wages under the FLSA] may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

Id. at 8-9 (emphasis in original) (quoting 29 U.S.C. § 216(b)).

Acknowledging that no other federal circuit has resolved the split among district courts regarding the propriety of “hybrid” settlements, the Third Circuit ultimately sided “with those courts that have held that § 216(b) of the FLSA provides only a mechanism for opting into collective litigation.” Id. at 10 (emphasis added). In other words, Section 216(b) “requires written consent to litigate FLSA claims, but it does not forbid the release of unasserted claims through a Rule 23(b)(3) opt-out settlement.” Id. at 16 (emphases added).   

The Third Circuit concluded with an important caveat, however, emphasizing that while the FLSA does not prohibit settlements through which Rule 23 class members release unasserted FLSA claims, that does not mean such settlements are always permissible: “[W]hether judges can approve opt-out settlements that release FLSA claims is a different inquiry from whether judges should do so. The former question is an issue of statutory interpretation; the latter turns on whether the settlement is ‘fair, reasonable, and adequate,’ subject to the District Court’s considerable discretion.” Id. at 16-17 (internal citation omitted). Thus, “while § 216(b) does not forbid the release of unasserted FLSA claims in opt-out settlements, such releases remain relevant to the court’s overall Rule 23(e)(2) analysis.” Id. at 18.

Implications Of The Decision

The Lundeen decision provides clarity on the proper scope of “hybrid” settlements involving the simultaneous release of FLSA claims and Rule 23 class claims premised on state wage-and-hour laws. Moving forward, defendants settling such claims will likely rely on Lundeen to broaden their settlements to cover the FLSA claims of all individuals within the Rule 23 settlement class, even if such individuals do not affirmatively opt into the case. This will give defendant-employers closure and alleviate potential risks as to whether settlement class members who did not opt into the case retain their rights to bring FLSA claims.

Parties should take heed of the caveat noted by the Third Circuit, however – namely, that a class settlement involving the release of unasserted FLSA claims will not automatically pass muster. Rather, district courts must still consider whether a class settlement is “fair, reasonable, and adequate.” To increase the likelihood that courts will approve “hybrid” class settlements, parties should ensure their proposed settlements satisfy the Rule 23(e)(2) “fairness” factors, including by: providing clear notice to class members of the scope of the release and a meaningful opportunity to opt out; and ensuring that the relief provided to the class is adequate when accounting for the costs and risks of litigation, the method of distributing relief to the class, and the terms of any proposed award of attorney’s fees.

By Gerald L. Maatman, Jr., Gregory Tsonis, and Christian J. Palacios

Duane Morris Takeaways:  On August 22, 2025, U.S. District Judge Matthew Kennelley for the Northern District of Illinois ruled that a group of supermarket meat, bakery, and deli managers could maintain their collective action against the grocery chain, Mariano’s, despite the differences in job responsibilities and store locations of collective action members. In the same order, Judge Kennelley denied Plaintiffs’ motion to certify a proposed class pursuant to Rule 23, highlighting the more demanding requirements for class certification. The case, captioned Depyper, et al. v. Roundy’s Supermarkets, Inc. et al., Case No. 20-C-2317 (N.D. Ill. Aug. 22, 2025) and available here, is significant because it is one of the first times a court considers a defendant’s “decertification” motion following the Seventh Circuit Court of Appeals decision in Richards, et al. v. Eli Lilly & Co., Case No. 24-2574, 2025 WL 221850 (7th Cir. Aug. 5, 2025), (“Eli Lilly”), which addressed the standard applicable for conditionally certifying an FLSA collective action. As this decision illustrates, although plaintiffs may face a higher legal bar for sending notice to a purported collective post-Eli Lilly, maintaining the collective after it has been “conditionally certified” is still subject to a much less demanding analysis than under Rule 23.

Background

Mariano’s and its banner store, Roundy’s Supermarkets, Inc. (“Defendant”), a well-known grocery store chain in the state of Illinois, was sued on April 14, 2020, by a former meat manager and bakery manager, alleging violations of the Fair Labor Standards Act (“FLSA”) and the Illinois Minimum Wage Law (“IMWL”), seeking unpaid overtime wages and alleging they were misclassified as exempt under both laws. Two years later, on April 21, 2022, a former deli manager filed a similar lawsuit alleging similar violations on behalf of her and other similarly situated deli managers. Id. The first lawsuit was “conditionally certified” on November 9, 2020, and Defendant stipulated to conditional certification in the second action on June 14, 2022.

Following the close of the lawsuits’ respective notice periods, the first collective action (comprised of meat managers and bakery managers) numbered twenty-eight (28) plaintiffs, while the second collective action (comprised of deli managers and hot foods managers) contained seventy-six (76) plaintiffs. Id. The parties consolidated the actions shortly thereafter to streamline discovery. Id.

After the close of discovery, Plaintiffs moved for “final certification” of the FLSA collective and concurrently moved to certify a IMWL class under Rule 23 comprised of all Mariano’s deli, hot foods, bakery, and/or meat department managers which were paid a weekly salary and classified as exempt, within the statutory period. Id. at 5. In response, Defendant moved to “decertify” both collectives. Id.

The Court’s Ruling

In a lengthy, 39-page opinion, the Court denied Plaintiffs’ motion for class certification under Rule 23 while simultaneously granting Plaintiffs’ motion for collective action certification (thus denying Defendant’s decertification motion).

The Court considered Plaintiffs’ class certification motion first, holding that while Plaintiffs established a common question (i.e. whether Defendant maintained an unofficial policy of misclassifying department managers), they did not establish that common issues predominated over individual issues. Id. at 10-11.  As Defendant maintained that it properly classified Plaintiffs as exempt from the FLSA under the Administrative or Executive exemptions, the Court determined that individualized inquiries would be required to establish whether exempt work was the primary duty of an employee.  Id. at 14.  Thus, even though proving an unofficial policy “will move the plaintiffs’ claims forward,” the factfinder would still have to determine whether that policy resulted in a department manager having non-exempt primary duties.  Id.  Notably, the Court also credited various declarations provided by Defendant from department managers that indicated a wide range of “supervisory responsibility,” thus requiring further individualized inquiries regarding satisfaction of the discretion and independent judgment necessary to establish the Administrative exemption, further precluding predominance.  Id. at 15-16.  Finally, the Court also denied Plaintiffs’ fallback argument for “issue-class certification” under Rule 23(c)(4), similarly reasoning that even isolating the alleged misclassification policy as a common issue would not materially advance the litigation, given liability still turned on an individualized analysis of plaintiffs’ primary duties. Id. at 19.

With respect to Plaintiffs’ motion for FLSA collective action certification, the Court’s analysis and conclusion differed markedly. The Court first noted that FLSA collective actions do not have the same requirements as Rule 23 class actions and, unlike Rule 23, nothing in the FLSA required “adequate representation,” establishing predominance, or proving the superiority of proceeding as a collective. Id. at 21. Notably, the Court first analyzed and considered the Seventh Circuit Court of Appeals’ recent decision in Eli Lilly, which revised the standard for granting conditional certification of an FLSA collective, and its consequence on the instant action. As the Court noted, although Eli Lilly provided some guidance on the “notice” stage of an FLSA collective action, once opt-in discovery concluded, Plaintiffs bore the burden of establishing that they were similarity situated at the final certification stage by a preponderance of evidence. Id. at 23. The Court also noted that Eli Lilly was silent on the standard that district courts should apply to determine whether the collective contains “similarly situated” employees. Id. at 23.

Given the lack of guidance from the Seventh Circuit, the Court applied a three-factor test adopted by district courts in Illinois and elsewhere, which considers: “(1) whether the plaintiffs share similar or disparate factual and employment settings; (2) whether the various affirmative defenses available to the defendant would have to be individually applied to each plaintiff; and (3) fairness and procedural concerns.” Id. at 23.

Applying these factors, the Court determined that plaintiffs met their burden and could maintain both collectives. Specifically, the Court found that the collective members uniformly testified that they were classified as exempt, constrained by upper-level management hierarchy, expected to work 50 hours per week, and often performed the same tasks as hourly employees. Id. at 28. Though Defendant attempted to point to dissimilarities between Plaintiffs’ testimony and the department manager job descriptions, the Court noted that this argument “does not show a difference among the plaintiffs,” concluding that “[t]he fact that the plaintiffs uniformly testified that their job descriptions did not accurately reflect their actual work is a similarity among them, not a difference.”  Id.  The Court further rejected Defendant’s argument that managers’ job responsibilities varied across locations, noting that the fact that Mariano’s had forty-four (44) locations was not dispositive.  Id. at 27.   Defendant did not demonstrate how each store was different from the others, the Court opined, further noting that Defendant itself thought store location was “immaterial” when classifying department managers as exempt. Id. at 27-28. Accordingly, the Court certified the twenty-eight (28) collective action of meat and bakery managers and the seventy-six (76) collective action of deli and hot foods managers.

Takeaway for Employers

This decision highlights the relatively lenient standard applicable to FLSA collective actions, as opposed to Rule 23 class actions.  Significant variation among job duties, titles, and responsibilities may not be enough to defeat collective action certification, and Employers should formulate an aggressive strategy for obtaining record evidence of substantial dissimilarities to prevail at the decertification stage. The Depyper decision also demonstrates that, while the Seventh Circuit has weighed in on the notice requirement for conditional certification, district courts retain substantial discretion in deciding what standard to apply at the “decertification” stage in assessing whether FLSA collective action members are “similarly situated.”  Ultimately, even where employers prevail against Rule 23 class claims, they can still face costly and broad FLSA collective action litigation on wage and hour claims.

By Gerald L. Maatman, Jr., Eden E. Anderson, and Caitlin Capriotti

Duane Morris Takeaways: On September 4, 2025, the Washington Supreme Court issued its highly anticipated decision in Branson, et al. v. Washington Fine Wine & Spirits, LLC, et al., Case No. 103394-0 (Wash. Sept. 4, 2025), holding that job applicants are not required to prove they are a “bona fide” or a “good faith” applicant to obtain remedies under the EPOA in class action litigation.  The Washington Supreme Court acknowledged, but declined to address, other open issues under the EPOA, which means that state and federal courts in Washington will now be called upon to rule on other unresolved issues under the statute, including whether the EPOA even grants a private right of action to applicants in the first instance. 

Case Background

Washington state’s Equal Pay and Opportunities Act (“EPOA”) was amended in 2022 to require employers to include wage or salary range information in job postings.  Soon thereafter, a torrent of class action lawsuits followed, some filed by applicants who had legitimately sought employment, but far more filed by serial plaintiffs seeking recovery of staggering amounts of statutory damages and attorneys’ fees.  Before it was further amended in 2025, the EPOA provided for $5,000 in statutory damages per job applicant. 

Plaintiffs Lisa Branson and Cherie Burke submitted applications for retail positions with defendant and the job postings to which they applied did not contain the required salary or wage range information.  Branson interviewed for the position for which she applied and discussed pay during that interview, but did not accept the position she was offered. 

Subsequently, Branson and Burke filed a class action lawsuit invoking their right to statutory damages under the EPOA.  Although Branson seemingly was a bona fide job applicant, the defendant filed a motion to bifurcate discovery, arguing that plaintiffs were not the type of “job applicants” the EPOA was intended to protect and that the statute only applies to “bona fide” applicants.  The U.S. District Court for the Western District of Washington certified the following question: “What must a Plaintiff prove to be deemed a ‘job applicant’” under the EPOA?  The Washington Supreme Court accepted certification to resolve that question.  

The Decision

Relying first on the dictionary definition of “applicant,” as “one who applies for something,” the Supreme Court noted that the definition does not rely on the subjective intent of the individual to determine whether a person is an applicant.  Thus, the plain meaning of the term means only “one who applies” irrespective of their intent in doing so.  The Supreme Court noted that elsewhere in the EPOA the legislature used the phrase “bone fide,” but it did not do so in reference to job applicants, further confirming no such limitation. 

The Supreme Court also found telling the fact that the legislature originally considered conferring remedies broadly to “individuals,” but then amended the statute to confer remedies on applicants and employees, suggesting the legislature specifically considered who could obtain remedies and yet did not include any further words of limitation such as “bona fide.”  Additionally, the Supreme Court highlighted that although the agency charged with adopting rules implementing the statute, Labor & Industries, originally promulgated draft rules which defined a job applicant as a “good faith” applicant, that definition was withdrawn and never implemented. 

The Supreme Court repeatedly noted in the decision that, if the EPOA is to be limited to bona fide or good faith job applicants, the Washington legislature will need to act to make this change. 

Three of the nine justices issued a sharply worded dissent disagreeing with the majority’s ruling and expressing their view that the EPOA was not designed to “give bounty seekers an incentive to trawl the internet for noncompliant job postings to obtain a statutory damages award unrelated to any personal harm.”  Dissenting Opinion, at 2.

Although the outcome is not what employers were hoping for, there are silver linings in the Branson decision and, in particular, in the Supreme Court’s numerous footnotes.  Principally, although it declined to rule on the issue because the argument was not made by the defendant, the Supreme Court chose to highlight in footnote 3 that the EPOA may only confer a private right of action on employers, and limit applicants to filing claims with Labor and Industries.  The Supreme Court also chose to emphasize another argument made in amicus briefing in footnote 6 of the decision wherein it highlighted that the remedies available under the EPOA may be too severe and unconstitutional.  It declined to rule on that issue too as it also was not an argument made by the defendant.  Thus, these issues and many others remain unresolved and may soon be addressed by Washington state and federal courts as the legions of EPOA cases, all stayed pending the Branson ruling, are now litigated. 

Implications of the Decision:

The Branson decision is an unfortunate ruling for Washington state employers.  An unharmed plaintiff who never had any legitimate interest in a posted job position and whose only goal is to collect money through legal proceedings now has the green light to seek remedies under the EPOA.  That said, the Branson decision highlights other defense arguments that can and should be made in all pending EPOA cases.  The decision suggests that a private right of action is limited to employees, and that applicants can only seek remedies under the EPOA through administrative proceedings before Labor & Industries. 

By Gerald L. Maatman, Jr., Anna Sheridan, and Ryan T. Garippo

Duane Morris Takeaways: On August 22, 2025, in Shamburg, et al. v. Ayvaz Pizza, LLC, et al., No. 24-CV-00098, 2025 WL 2431652 (W.D. Va. Aug. 22, 2025), Judge Jasmine Yoon of the U.S. District Court for the Western District of Virginia partially dismissed a proposed nationwide collective action brought by pizza delivery drivers.  Although Plaintiff Chandler Shamburg (“Plaintiff” or “Shamburg”), and other plaintiffs, asserted nationwide Fair Labor Standards Act (“FLSA”) and state law claims from multiple jurisdictions, the Court dismissed nearly all of them for lack of personal jurisdiction. This ruling reinforces the growing trend of federal courts willing to apply the Due Process Clause’s protections to expansive FLSA collective actions and underscores the difficulty plaintiffs face in keeping sprawling, multi-state, wage claims altogether in one federal court.

Case Background

In 2024, Shamburg filed a putative class and collective action that alleged that Ayvaz Pizza (“Ayvaz”), a franchisee that “operates an unidentified number of Pizza Hut Franchise Stores within” Virginia, that is neither incorporated in nor has its principal place of business in Virginia, violated the FLSA and various state laws.  Id. at *1.  They also sued Ayvaz’s owner, Shoukat Dhanani, for this conduct as well.  Id.

Shamburg (and, ultimately several other plaintiffs) alleged that both himself, and other drivers, were “required to use their own cars, ensure their cars were legally compliant, pay car-related costs including gasoline expenses, maintenance and part costs, insurance, financing charges, and licensing and registration costs, pay storage costs, cell phone costs, and data charges, and pay for other necessary equipment.”  Id.  As a result, Shamburg and the out-of-state plaintiffs alleged that their hourly rate of pay dropped below the FLSA’s minimum wage guarantee because these expenses were “kicked back” to Ayvaz.  Id. at *1-2.  They also brought seventeen state law claims that “assert causes of action from seven different states and invoke both state statutory and common law.”  Id. at *8.

But, Ayvaz was no stranger to these issues.  It was also recently sued in Garza, et al. v. Ayvaz Pizza, LLC, No. 23-CV-01379 (S.D. Tex.), and Stotesbery, et al. v. Muy Pizza-Tejas, LLC, et al., No. 22-CV-01622 (D. Minn.), based on similar allegations.  Based on the existence of these prior two actions, and the presence of the out-of-state plaintiffs’ claims, Ayvaz and its owner moved to dismiss based on lack of personal jurisdiction (both general and specific), lack of supplemental jurisdiction, and the first-to-file doctrine.  Judge Yoon’s decision followed.

The Court’s Ruling

In general, Judge Yoon’s decision was split into four discrete parts — each addressing whether the Court could exercise various forms of jurisdiction over Ayvaz and its owner.  For the most part, the Court declined each type of jurisdiction.

General Personal Jurisdiction & Out-Of-State Plaintiffs

First, although it was uncontested that Ayvaz was neither incorporated in nor headquartered out of Virginia, Plaintiffs argued that Ayvaz was subject to general personal jurisdiction in Virginia based on the U.S. Supreme Court’s decision in Mallory v. Norfolk Southern Railway Co., 600 U.S. 122 (2023).  In Mallory, the U.S. Supreme Court held that Due Process does not prohibit “a State from requiring an out-of-state corporation to consent to personal jurisdiction to do business there.”  Id. at 127.  Like the Pennsylvania statute at issue in Mallory, Virginia also has “an out-of-state business registration statute.”  Shamburg¸ 2025 WL 2431652, at *5.

Judge Yoon, however, reasoned that “unlike Pennsylvania, Virginia law does not require the out-of-state business to condition its registration on submitting to general personal jurisdiction” consistent with the decisions of several other district courts.  Id.  Thus, the Court “conclude[d] that, absent explicit consent to jurisdiction in Virginia’s business registration statute” it could not exercise general personal jurisdiction over Ayvaz or its owner.

Specific Jurisdiction & Out-Of-State Plaintiffs

Second, the Court addressed the out-of-state plaintiffs’ argument that the Court could exercise specific personal jurisdiction over Ayvaz as to the out-of-state plaintiffs but disagreed.  Judge Yoon weighed in on the pending circuit split regarding the applicability of Bristol-Myers Squibb v. Superior Court, 582 U.S. 255 (2017), to FLSA collective actions.  The Third, Sixth, Seventh, Eighth and Ninth Circuits hold that Bristol-Myers applies, whereas the First Circuit stands alone and holds otherwise.

Judge Yoon agreed with “the approach taken by the majority of the Courts of Appeals” and held each plaintiff “must present independent, sufficient bases for the exercise of the court’s specific jurisdiction over that claim.”  Id. at *6.  Similarly, because none of the plaintiffs alleged facts related to the owner’s minimum contacts with Virginia “beyond the fact that Ayvaz is registered to do business in Virginia and operates an unidentified number of Pizza Hut Franchise Stores,” their claims could not proceed against him either.

The Seventeen State Law Counts

Third, having dismissed the out-of-state plaintiffs’ claims, Judge Yoon declined to exercise supplemental jurisdiction over the seventeen state law counts. The Court observed that “the presence of more subclasses (eight) than states (seven) provides evidence of both complexity and the lack of commonality” that show that the state law claims “would substantially predominate over the FLSA claim.”  Id. at *8.  The court dismissed those claims without prejudice, leaving only the FLSA claims brought by Virginia-based employees.

The First-To-File Doctrine

Fourth and finally, the Court declined Ayvaz’s request to dismiss the case under the “first-to-file” doctrine due to the existence of the earlier filed suits in Garza and Stotesbury.  The first-to-file rule allows a federal court to decline jurisdiction when a substantially similar lawsuit involving the same parties and issues is already pending in another court.  Id. at *10.  But, the court concluded that the “putative classes and respective issues” in the two prior suits differ enough that the first-to-file rule should not be applied.  Id. at *12.

Indeed, “Stotesbery, by design, includes an FLSA claim limited to those who work in Minnesota” and thus did not overlap based on the Court’s ruling.  Id.  And, the Court declined to apply the first-to-file doctrine to Garza because the “case was settled and dismissed with prejudice” and thus was not pending at the time of the decision.  Id. at *10.   “Accordingly, Plaintiffs’ complaint will survive the motion to dismiss with respect to the FLSA claim for Plaintiffs who live in or work in Virginia.”  Id. at *12.

Implications for Employers

The Shamburg decision demonstrates that courts are increasingly unwilling to allow out-of-state employees to anchor nationwide collective actions against employers without first affording employers certain due process protections.  This growing trend prevents employers from having to defend these actions in distant and unfamiliar courts, and forces plaintiffs to bring these actions where these employers are incorporated or headquartered.

With these trends in mind, corporate counsel should continue to monitor this blog for developments because the Bristol-Myers circuit split is sure to be decided by the U.S. Supreme Court soon, and if their companies are sued in putative class and collective actions, it is better to prepared in advance for when these important issues are decided.

By Gerald L. Maatman, Jr., Anna Sheridan, and Rebecca S. Bjork

Duane Morris Takeaways: On July 3, 2025, the Maryland Supreme Court held in Martinez v. Amazon.com, Serv., No. Misc. 17 (Md. July 3, 2025), that the long-standing common law doctrine de minimis curat lex applies to both the Maryland Wage & Hour Law (MWHL) and the Maryland Wage Payment and Collection Law (MWPCL).  The Supreme Court aligned Maryland with federal precedent, reinforcing the principle that employers are not required to compensate employees for truly trivial amounts of uncompensated work time – what the U.S. Supreme Court has called “split second absurdities.”  This ruling marks a notable win for employers in Maryland, who now have a potential defense against claims for brief unpaid time.  For the defendant, the litigation will return to U.S. District Court for the District of Maryland – which had certified the question to the Maryland Supreme Court – for factual analysis on whether the time claimed by employees waiting in line to pass through security screening was truly de minimis.

Case Background

On December 2, 2021, Plaintiff Estefany Martinez brought a putative class and collective action in the U.S. District Court for the District of Maryland on behalf of current and former Amazon employees at its Baltimore fulfillment center.  Id. at 2, 6. The Complaint alleged that Amazon failed to compensate employees for post-shift time spent in mandatory security screenings, which allegedly took between 3 and 15 minutes per shift.  Id. at 5.

Martinez brought claims under the Fair Labor Standards Act (FLSA), MWHL, and MWPCL, seeking to recover unpaid wages and associated damages. On November 18, 2024, the District Court certified to the Maryland Supreme Court the following question: Does the doctrine of de minimis non curat lex, as described in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), and Sandifer v. U.S. Steel Corp., 571 U.S. 220 (2014), apply to claims brought under the Maryland Wage Payment and Collection Law and the Maryland Wage and Hour Law?  Martinez v. Amazon.com Servs. LLC, No. 22-CV- 00502, 2024 WL 4817214, at *33 (D. Md. Nov. 18, 2024).

The Supreme Court of Maryland’s Ruling

On July 3, 2025, in a 5-2 opinion, the Supreme Court of Maryland held that the de minimis doctrine does apply to Maryland wage laws. Martinez. Slip op. at 2.  The Supreme Court reasoned that Maryland wage laws are silent on the issue but were modeled on the FLSA, which has long been interpreted to permit employers to disregard “split-second absurdities” – short, administratively burdensome periods of unpaid time. See Anderson, 328 U.S. at 692.

The Supreme Court emphasized that Maryland’s General Assembly did not express any intent to abrogate the common law rule that the law does not concern itself with trifles. It reasoned that had the General Assembly intended to prohibit a de minimis exception, it would have said so. Martinez, Slip op. at 17-19. It further observed that Maryland’s regulatory definitions of compensable time, as reflected in COMAR 09.12.41.10, are consistent with federal standards and do not contradict the de minimis doctrine.

In support, the Supreme Court relied on Anderson v. Mt. Clemens Pottery Co., where the U.S. Supreme Court held that employees must be paid for all time spent working, including pre-shift activities integral to their principal duties. However, Anderson recognized that courts need not impose liability for “negligible time,” noting that “it is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.” Anderson, at 692. After Anderson, the FLSA was not amended regarding the de minimis doctrine, rather it was determined that it was included in the statute all along.

Anderson also recognized the impracticality of recording every minute of work-related activity. It is from this recognition that the de minimis doctrine in wage law was born and later codified and clarified by the Portal-to-Portal Act of 1947.

The Supreme Court of Maryland also cited Sandifer v. U.S. Steel Corp., 571 U.S. 220, 229 (2014) (Martinez, Slip op. at 15), in which the U.S. Supreme Court reiterated that even under the FLSA, employers are not obligated to compensate for time that is too fleeting or difficult to track with precision. Maryland case law authorities have described the MWHL as the State “equivalent,” “parallel,” “partner,” and “counterpart” of the FLSA (id. at 23), and the MWHL mirrors many of the FLSA features, definitions, and exemptions and has remained “substantially similar” to the FLSA since the 1960s. Id. at 24-25.  The Supreme Court emphasized that when the General Assembly enacted the Maryland wage laws, it did so against the backdrop of Anderson, Sandifer, and the Portal-to Portal Act, thereby implicitly adopting their contours unless stated otherwise.

Implications for Employers

While the Martinez decision provides employers some breathing room regarding irregular, brief, and administratively difficult to track periods of unpaid time, it does not offer a blanket exemption. Whether a given period of unpaid time qualifies as de minimis remains a highly fact-specific question. In future litigations, plaintiffs must now show that the time they allegedly were not paid for is more than “trifling.” We will follow the proceedings in the U.S. District Court in the Martinez case and keep our readers apprised of developments.