In Scott v. Chipotle Mexican Grill, Inc., No. 12-cv-08333 (S.D.N.Y. Dec. 18, 2014), the court held that, by asserting a good faith defense to a FSLA violation, defendant put the advice of its counsel at issue and thereby waived the attorney-client privilege.  Under Section 260 of the FSLA, an employer who has been found liable for past wages may allege a reasonable, good-faith belief that it was not violating FLSA to avoid liability for liquidated damages.  The court explained that the burden of proving good faith under FLSA is “a difficult one, with double damages being the norm and single damages the exception.” As such,  “[g]ood faith in this context requires more than ignorance of the prevailing law or uncertainty about its development.  It requires that an employer first take active steps to ascertain the dictates of the FLSA and then move to comply with them.”  It is not sufficient to show that the employer did not purposefully violate the statute.  Here, plaintiffs demonstrated that the employer had received the advice of counsel.  Under the test for good faith as applied under the statute, the court held that the employer could not define the affirmative defense in such a way as to remove its state of mind from being at issue.  If it received legal advice on the issue, and asserted a good faith defense, plaintiffs had the right to discover what advice the employer had received prior to violating the FSLA.