Status Reports

Court Strikes Collective and Class Action Waiver And Sends Case to Class Arbitration – Posted 3/26/12

The Court has issued a fascinating decision in this case that is being hailed around the country as an important victory for workers’ rights. In one of the first Court decisions since the NLRB issued its decision in D.R. Horton, Judge Crabb has ruled that Waterstone’s employment agreement cannot legally require employees to waive their right to join claims with other workers. Click here to review the Court’s Order. The Court held that the collective and class waiver is unlawful and must be “severed” from the employment agreement. This severance takes place legally, but Waterstone is unlikely to physically remove the offending clause or even to advise workers that this clause is not in effect. Nevertheless, Judge Crabb also ruled against Plaintiffs by sending the class action case to arbitration. In light of Judge Crabb’s ruling on the class waiver, however, Plaintiffs now believe that the decision to proceed in arbitration is very helpful to loan officers. For example, in arbitration, under a doctrine known as Long John Silvers, arbitrators generally treat FLSA overtime cases as class actions, even though such cases would only be treated as “collective actions” in Court. Class actions allow cases to be brought for current employees without the employees having to publicly sign their names onto the lawsuit. Filing fees can be significantly more expensive in arbitration but these fees will, as a practical matter, ultimately be borne by Waterstone in settlement or when Herrington wins the arbitration. click here to review the AAA arbitration demand. Finally, because arbitration is a much quicker process from which appeals are very limited, Plaintiffs believe that we will ultimately win relief much quicker than would be obtained in Court. Waterstone does have the right to appeal Judge Crabb’s decision and while the grounds for such an appeal are extremely shaky, the company may appeal simply to delay the case for as long as possible. Waterstone has 30 days from the date of the decision in which to appeal.

Court Requests Additional Briefing – Posted 3/9/12

The Court requested additional briefing from both sides on the issue of whether the Court has jurisdiction to consider the illegality of the class action waiver provision in the arbitration agreement. The National Labor Relations Board recently held that class and collective action waivers are unlawful. The question is whether only the NLRB can reach this question or whether the Court may apply the NLRB’s ruling. Plaintiffs filed a thorough brief explaining why the Court must consider whether the arbitration clause is illegal and pointing out that the NLRB has directed Courts to consider such illegality. Click here to review the Plaintiffs’ brief filed today. Waterstone also filed a brief in support of its position that the Court cannot consider the question. Click here to review Waterstone’s brief. The matter will now be considered by the Court.

Plaintiffs Move Court To Compel Discovery – Posted 2/23/12

Plaintiffs have asked the Court to compel Waterstone to participate in discovery concerning the appropriateness of this case for class certification. Click here to review Plaintiffs’ Motion.The Court had previously set a deadline of June 1st for Plaintiffs’ class certification motion. Waterstone refuses to answer discovery claiming that its motion to dismiss is reason why it should not comply. The Court however previously refused to stay discovery in this case. Within an hour after Plaintiffs’ motion, Defendants asked the Court to issue a stay of discovery. Click here to review Defendant’s Motion to Stay. The disputes will now be briefed by both sides.

Herrington Charges Waterstone With Violating National Labor Relations Act (NLRA) – Posted 1/13/12

Plaintiff Herrington filed a “charge” against Waterstone Mortgage Corporation. The charge is based on a recent decision of the National Labor Relations Board known as D.R. Horton, which held that a company may not require employees to go to arbitration and waive their right to proceed by class or collective action. The NLRB found this type of clause (which Waterstone placed in paragraph 13 of its employment agreement) to violate the NLRA, which protects employees’ ability to engage in “concerted activity.” Herrington had given Waterstone a chance to voluntarily remove the unlawful clause from its agreement, but Waterstone refused, prompting the charge, which was filed with Region 30 of the National Labor Relations Board. The Board will now investigate to determine whether it will take measures against Waterstone for the clause. If any employees have been contacted by Waterstone management concerning this case or the arbitration clause, please call Getman Sweeney to review the situation.

On January 19, 2012, U.S. Magistrate Judge Stephen L. Crocker issued a scheduling order in this case. Click here to review the scheduling order.

The Arbitration Clause In WMC’s Employment Agreement – Posted 1-25-12

WMC refuses to withdraw the arbitration clause containing an unlawful class and collective action waiver. Getman Sweeney has prepared a short video concerning the unlawful arbitration clause contained in WMC’s employment agreement.

Motions Made and Answered

Defendant Waterstone has moved to dismiss the case to send the case to arbitration. Waterstone claims that the arbitration clause of the contract (paragraph 13) requires arbitration on an individual by individual basis. Plaintiffs believe this argument is frivolous for numerous reasons. Click here to review Plaintiffs’ brief in opposition to Waterstone’s Motion to Dismiss. On the same day that Plaintiffs filed their motion in opposition to arbitration, the National Labor Relations Board ruled that class and collective action waivers, as is contained in the Waterstone employment agreement, constitute an unfair labor practice. Click here to review the NLRB’s decision in the D.R. Horton case. In light of the fact that the arbitration clause with class and collective action waiver constitutes a clear violation of federal law, Plaintiffs are asking Waterstone to withdraw its motion to dismiss, demanding that Waterstone remove the offending clause from the employment agreement, and demanding that Waterstone take further steps to notify employees that the arbitration clause is invalid.

Video Information About This Lawsuit – Posted 12/2/11

Here’s a short video prepared by Getman Sweeney about this case.

 

Complaint Filed – Posted 11/28/11

Plaintiffs initially served a 10 day demand on the company as called for in the employment agreement. The document which begins a lawsuit is called a “complaint.” Plaintiffs have now filed a complaint in this case with the Western District of Wisconsin. Click here to review the complaint that has been filed in court.

Answers to Common Questions – Posted 11/18/11

What claims are covered in this case?

The complaint covers claims for overtime and minimum wage back pay under the federal Fair Labor Standards Act (“FLSA”) . The specific violations claimed are that the Defendants failed to pay minimum and overtime wages to its loan officers and made illegal deductions from their pay.

What damages are sought?

Damages sought under the FLSA include back minimum and overtime wages, an equal amount of liquidated damages, interest, and fees and costs for each violation. Damages for the state law claims include back minimum wage and overtime pay, recovery of illegal deductions, liquidated damages, interest, and fees and costs.

The FLSA provides for liquidated damages in an amount equal to the back pay owed and allows claims going back three years from when someone affirmatively joins the case by filing a Consent to Sue. You must send us a signed Consent to Sue to bring your federal wage and hour claims in this action.

How far back can claims be made?

Under the FLSA, you are entitled to make claims for the period extending back three years from the date your Consent To Sue Form is filed in the lawsuit. Waterstone will be entitled to argue that its violations were not willful and that its claims should only be limited to a two-year period preceding the filing of your Consent to Sue. This two or three year period is called the “statute of limitation.”

The state contract claims have different statutes of limitations.

How do I join the case?

To bring claims under the FLSA for back wages and an equal amount of liquidated damages in this action, you must affirmatively join the case by filing a Consent to Arbitrate (1.2.1 Consent to Arb Form.pdf 9KB).

Do I have to pay to join the case?

No. The attorneys representing plaintiffs are Getman & Sweeney, PLLC and they are handling this case on a contingent basis and will only be paid when we win through a settlement or final judgment.

Can I wait to file my Consent to Sue form?

You are not part of the FLSA case until your Consent to Sue Form is returned to the plaintiffs’ attorneys and filed. If you delay in filing the , part or all of your claim may be barred by the statute of limitations.

Can the Waterstone fire me or take action against me for joining the case?

The law prohibits retaliation for joining an overtime lawsuit. If any employee suffers retaliation, Waterstone would be liable for at least double the injury caused to the employee, and possibly much more. Notify us immediately if you think any retaliation occurs. Retaliation is rare in overtime cases, because an employer can suffer such serious penalties.

What work locations are covered by this lawsuit?

The FLSA claims in this lawsuit cover every worksite nationwide in the U.S.A. If you worked for Defendant Waterstone anywhere in the country, you can bring FLSA claims in this case.