Just two days after the U.S. Ninth Circuit Court of Appeals in Morris, et al. v. Ernst & Young, LLP held that accounting firm Ernst & Young violated the federal National Labor Relations Act by compelling workers to sign a class action waiver in its employment agreement, Judge David Lawson of the U.S. District Court of Michigan found that similar class arbitration waivers used by Kelly Services are illegal and unenforceable under the federal Fair Labor Standards Act.

In Gaffers v. Kelly Services, Inc., the plaintiff home-based call center agents – represented by Sommers Schwartz attorneys Jason Thompson and Kevin Stoops – claim that they regularly worked more than 40 hours per week, entitling them to time-and-a-half, but their employer circumvented overtime requirements by unlawfully withholding compensation for various job-related tasks. Defendant Kelly Services moved to stay the suit and force the plaintiffs to submit to individual arbitration in accordance with a waiver contained in its mandatory arbitration agreement.

Judge Lawson’s denial of the defendant’s motion and grant of conditional certification of the collective action allows the lawsuit to move forward, setting the stage for an appeal to the U.S. Sixth Circuit. Because of a split among the federal circuits on the validity of class arbitration waivers in employment cases, many legal experts believe the issue will ultimately be decided by the U.S. Supreme Court.

Be sure to visit our blog again as we continue to report on this case, other instances of wage theft, and new developments in wage and overtime laws.

Jason J. Thompson

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Jason J. Thompson

Jason Thompson is a nationally board certified trial attorney and co-chairs Sommers Schwartz’s Complex Litigation Department. He has a formidable breadth of litigation experience, including class action and multidistrict litigation (MDL), and practices nationwide in both state and federal courts.