As we all know, wage and hour litigation continues to soar to record highs. We expect 2016 will be another record year and that the revisions to the white collar exemptions effective December 1st will further increase the number of lawsuits around the country.

In an attempt to stem its ever-increasing caseload of FLSA cases, the U.S. District Court for the Southern District of New York recently announced that, beginning October 3, 2016, cases filed under the FLSA and assigned to Judges Abrams, Briccetti, Carter, Daniels, Ramos, Seibel, and Woods will be ordered directly to mediation, before the initial Rule 16 conference, with limited pre-mediation disclosures.

The mediation must take place within 60 days of the referral to mediation. The limited information exchange includes the following:

  1. Any existing documents that describe the Plaintiff’s duties and responsibilities.
  2. Records of wages paid to and hours worked by the Plaintiff (e.g., payroll records, time sheets, work schedules, wage statements and wage notices).
  3. The Plaintiff must produce a spreadsheet of alleged underpayments and other damages.
  4. The Defendant(s) must produce any existing documents describing compensation policies or practices.
  5. If the Defendants intend to assert an inability to pay, then they must produce proof of financial condition, including tax records, business records, or other documents demonstrating their financial status.

If the parties reach a settlement at the mediation, “they shall prepare a joint statement explaining the basis for the proposed settlement, including any provision for attorney fees, and why it should be approved as fair and reasonable,” in accordance with Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015).

The SDNY’s announcement comes on the heels of the effort by its sister court, the Eastern District of New York, to expand its mediation program for FLSA cases by “seeking mediators with substantial knowledge of the Fair Labor Standards Act (FLSA) to join the EDNY Mediation Panel.”

We fully expect the non-participating Judges within the SDNY, and other courts across the country, will be monitoring the effectiveness of the pilot program as well as the EDNY’s efforts to foster early mediation in FLSA cases. If the program is successful, and the pace of new case filings remains high, other Districts may implement similar procedures.