If you are an attorney who loves Greek cuisine, and who does not have the time to both dine at all your favorite places and keep up on the latest developments in wage and hour law, here is some food for thought. Below you will find some tips that may be useful to you when the recent wave of class action lawsuits hits the shores of your favorite taverna.

The Fair Labor Standards Act (FLSA), the federal statute governing wage and hour laws, was enacted in 1938. Wage and hour collective actions, however, are a fairly recent phenomenon. Why have class actions become so prevalent all of a sudden?

Here is one theory: Remember the tobacco class action wave of the 1990s? As that was resolved, there was a glut of experienced class action litigation attorneys with time on their hands. At the same time, employers became more aggressive in implementing training programs to prevent discrimination and harassment, making it more difficult for employees to prevail on these claims. However, since it is difficult to run a business (especially a restaurant) without violating any federal or state wage and hour law or regulation, violations of the FLSA and its state wage and hour counterparts are the new "low-hanging fruit" for plaintiff’s employment attorneys. Restaurants, known for their informal bookkeeping procedures, are particularly easy targets for plaintiff’s employment lawyers.

A class or a collective action is a single complaint that purports to represent the claims of many. Think of it as many lawsuits bundled into one. In a wage and hour collective action under federal law, a plaintiff asks the court to recognize a class of allegedly aggrieved employees. If the class is certified (recognized by the court), then other members who share the same grievances could "opt in" to the lawsuit, and ask the court that their claims be adjudicated as part of the same case. In a state wage and hour class action in jurisdictions like New York, all potentially aggrieved individuals are part of a recognized class and their rights are adjudicated in the lawsuit, unless they affirmatively "opt out" of the class. Oftentimes a plaintiff will bring both a collective action under federal law and a class action under state law, requiring that you fight a strategic battle on both fronts.

Because class and collective actions can result in substantial liability for your clients, the defense of class actions require aggressive and proactive tactics.

Collective or class action lawsuits are very complex and can result in exponential liability. Securing your client’s cooperation early on is pivotal in successfully defending this type of case. Here are some ways in which your client could assist you in defending a class action lawsuit.

Take stock. Evaluate the allegations and collect information that you will need to disprove the employee’s claims. Ask your client what evidence it has in its possession. Are employees claiming they didn’t receive required meal breaks or get paid for all hours worked? Collect time-card or sign-in-sheet information. Are your client’s records in disarray? Be creative. Perhaps your client’s security video footage shows when employees first arrive at work or how long employees stay in the break room. Guest checks may have a server’s name on it with a date and time stamp. Restaurant managers may possess notes regarding schedules. The person distributing tips for the evening may have a computerized record of when tips were paid out for the day. Once you have identified the possible sources of data, instruct your client to preserve all sources (documents, e-mails, etc.) of potentially relevant information until the conclusion of the lawsuit. The penalties for losing evidence, even inadvertently, are great—not to mention, it may cost your client the lawsuit.

Talk to witnesses. You may be able to interview current or former employees and collect statements rebutting the lawsuit’s allegations. Proceed with caution, however— any statement obtained by an employer or his agent must be given "knowingly and voluntarily," and courts frown upon employee affidavits obtained by "coercion" (i.e., under the threat of losing their job, etc.). Also, such statements are easier to obtain before a class is certified (before the court permits the lawsuit to move forward on behalf of a class of aggrieved employees); after a class is certified, the potential class members are considered "clients" of the plaintiff’s attorney and the law restricts one’s ability to communicate with individuals represented by an attorney under certain circumstances.

Assess your client’s potential liability. Conduct an audit. Consider the possible scenarios: If the lawsuit’s allegations are 100% true, what would your client’s potential liability be? After you find that out, then look at your client’s evidence. What elements of the lawsuit can you easily disprove? In light of that evidence, what is your client’s potential liability? Once you have a sense of your client’s possible exposure, you can formulate an educated settlement position.

Evaluate your client’s defenses. Are employees claiming they did not receive minimum wage or are entitled to overtime? Perhaps your client’s obligation to pay overtime was not triggered because employees did not work over 40 hours per week. Perhaps the complaining employees are managers or supervisors who are exempt from federal and state overtime laws and are therefore not entitled to overtime. Maybe your client served meals to its employees, for which it might be entitled to meal credits to offset any liability.

Attack the class claims. Before the court recognizes a group of potentially aggrieved individuals as a class, a plaintiff’s attorney must overcome several hurdles to prove that the claims of all the employees in the class are similar, and that, therefore, it makes sense for them to be tried together in one lawsuit. Your job is to show that this is not the case; for example, if your client owns more than one restaurant, and the lawsuit is against all of its restaurants, you can attempt to show that the practices of each restaurant, and under different managers, differ. If the lawsuit is against one restaurant, you could assert that the practices are different for employees who work in different departments or areas. For example, working conditions are different for employees in the kitchen than for employees who serve customers. If the plaintiff who filed the lawsuit was terminated, you could argue that a terminated employee does not adequately represent employees who are currently working in the restaurant. The goal is to show that the claims raised by the plaintiff differ in material respects from the claims of the class the plaintiff allegedly represents. Since your clients are familiar with the nuts and bolts of their restaurant’s day-to-day operations, they can assist you in identifying and collecting the facts that would support the arguments you must make to defeat class certification.

Damage control. As mentioned above, it is difficult for an employer to run a business without violating any federal or state wage and hour statutes or regulations. Consequently, it is very possible that the lawsuit has identified issues or practices that may be problematic, even if only from a recordkeeping standpoint. Assist your client in identifying how it can minimize or eliminate liability and correct problems. Often class actions are brought on behalf of "past, present and future" employees. If your client corrects the issues identified by the lawsuit, there would be no "future" employees aggrieved by the same issues who could join the class, thereby cutting off your client’s potential for additional liability.

Settlement. Once you have collected evidence and evaluated the best- and worst-case scenarios as far as liability, it is time to consider settlement. Settlement of FLSA claims require court approval. The settlement of state wage and hour claims may also require court approval, depending on the jurisdiction. Once you know the weaknesses and strengths of your case, discuss with your client whether attempting to negotiate a prompt settlement before a class is certified makes the most sense from a business standpoint. On the other hand, you and your client may determine that settlement of this particular case will simply invite other collective action lawsuits. In that case, you and your client may decide that the conditional certification of the class for purposes of settlement only is the best method of disposing of the case or that trial on at least some of the issues is more cost-effective in the long run.

With this information, I leave you to continue enjoying that delicious souvlaki. Kali oreksi.

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