Greg Mersol

Firm/Organization: Baker & Hostetler LLP

Latest Articles

Third Circuit Affirms $4.5 Million Verdict in Favor of Exotic Dancers

By Greg Mersol on September 18, 2019

A significant amount of wage and hour class/collective jurisprudence has developed around the issue of whether exotic dancers are employees or independent contractors. We’ve blogged many of these issues in the past [June 6, 2019, August 27, 2018, January 27, 2017, December 3, 2014, November 21, 2012, April 8, 2011]. There are many other cases we have not blogged, and a significant number have now been decided by…

Employment Class Action Blog

Ninth Circuit Reverses Itself And Finds That At Least Some ERISA Claims Can Be Compelled To Arbitration

By Greg Mersol on August 23, 2019

But Do You Really Want To In All Cases? The Employee Retirement Income Security Act of 1974 (“ERISA”) was the largest statute ever passed by Congress at the time it was enacted and has only grown further since then. In the 44 years that have followed its effective date, so too have grown the number of opinions, and changes in direction, among the courts. There is little question that ERISA functions unlike many other statutes.…

Employment Class Action Blog

Tennessee District Court Refuses Conditional Certification of Class of Assistant Managers

By Greg Mersol on August 21, 2019

In collective actions under the FLSA, courts typically apply a lower standard to the first “conditional certification” stage. In some cases, that might be warranted, but in many instances courts will undertake an unduly lenient review and conditionally certify cases that have no business proceeding as a class and have no realistic prospect of surviving as a class at the higher second stage. These rulings likely run afoul of the admonition of the Federal Rules…

Employment Class Action Blog

District Court Decertifies FLSA Collective Action With Independent Contractor Issues

By Greg Mersol on August 9, 2019

We’ve commented many times before that relatively few collective actions survive the “second stage” motion to decertify or, relatedly, an unofficial “third stage” when the trial court actually considers how the matter will be managed at trial. Here is another variation on that theme – an unusual case involving a lender’s claimed involvement in the failure to pay wages. The case of Garcia v. Peterson, Civil Action H-17-1601 (S.D. Tex., August 5, 2019), arose…

Employment Class Action Blog

Ninth Circuit Undermines Use of Time Studies in Disposing of Wage and Hour Claims in California

By Greg Mersol on August 8, 2019

Two years ago, we blogged a pair of cases with similar fact patterns and outcomes involving the successful use of time studies (See our October 13, 2017 and October 16, 2017 blog posts). In both cases, shoe retailers required employees to undergo brief security checks before leaving the store. The employees in both cases brought Rule 23 class claims under California law to recover wages and the usual list of California damages arising from the…

Employment Class Action Blog

Tennessee District Court Conditionally Certifies ADEA Collective Action

By Greg Mersol on June 14, 2019

Connecting the dots will likely be a problem down the road . . . The overwhelming majority of employment class or collective actions today are wage and hour matters. The two-step paradigm for certifying wage and hour claims under the Fair Labor Standards Act has, despite Congressional intent to the contrary, enabled much of that boom in overtime litigation. The Age Discrimination in Employment Act expressly incorporates much of the FLSA’s enforcement procedure, including the…

Employment Class Action Blog

Sixth Circuit Affirms Complex Settlement of FLSA Claims Involving Exotic Dancers

By Greg Mersol on June 6, 2019

An FLSA collective action involving exotic dancers is brought in 2008 and settles in 2011. Five years later, the same attorneys file essentially the same case with many of the same dancers as class members against some of the same defendants. And one of those defendants has the name “Déjà vu.” What are the odds? Whatever the odds are, that’s what happened in Jane Does 1-2 v. Déjà vu Consulting Inc., Case Nos. 17-1801/1802/1827 (6th …

Employment Class Action Blog

Title VII’s Charge Requirement Isn’t Jurisdictional, But It Can Still Be Fatal

By Greg Mersol on June 3, 2019

Some cases look a lot more important at first glance than what they turn out to be. Case in point, today’s decision in Fort Bend County, Texas v. Davis, Case No. 18-525 (U.S. Sup. Ct. June 3, 2019). The Court’s holding was that Title VII’s charge-filing requirement is not jurisdictional. In the end, however, the holding largely means that the requirement is still a defense, but it is one that must be asserted and…

Employment Class Action Blog

Illinois District Court Decertifies Equal Pay Act Collective Class Involving Physicians

By Greg Mersol on April 24, 2019

Section 16(b) of the Fair Labor Standards Act (FLSA) is the provision that requires those participating in a federal claim for minimum wages or overtime to opt in to the class, making Rule 23 inapplicable. The same enforcement applies to claims under the Equal Pay Act (EPA), 29 U.S.C. Section 206(d). The EPA is itself the result of a 1963 amendment to the FLSA, predating Title VII’s prohibition on sex discrimination by several months but…

Employment Class Action Blog

Missouri District Court Decertifies FLSA Class of IT Workers

By Greg Mersol on April 23, 2019

We’ve noted before that while conditional certification motions are often granted, such classes fare far less well at the second decertification stage and just as poorly on the eve of trial. See: “Ninth Circuit Affirms Decertification of FLSA Off-the-Clock Case” from Sept. 21, 2018, and “Ohio District Court Decertifies Class of Health Care Workers in Meal Break Case” from Feb. 12, 2013. The problem in many respects is that some courts will…

Greg Mersol

Third Circuit Affirms $4.5 Million Verdict in Favor of Exotic Dancers

Ninth Circuit Reverses Itself And Finds That At Least Some ERISA Claims Can Be Compelled To Arbitration

Tennessee District Court Refuses Conditional Certification of Class of Assistant Managers

District Court Decertifies FLSA Collective Action With Independent Contractor Issues

Ninth Circuit Undermines Use of Time Studies in Disposing of Wage and Hour Claims in California

Tennessee District Court Conditionally Certifies ADEA Collective Action

Sixth Circuit Affirms Complex Settlement of FLSA Claims Involving Exotic Dancers

Title VII’s Charge Requirement Isn’t Jurisdictional, But It Can Still Be Fatal

Illinois District Court Decertifies Equal Pay Act Collective Class Involving Physicians

Missouri District Court Decertifies FLSA Class of IT Workers

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