The Southern District of New York (SDNY) recently announced a new pilot mediation program for cases filed under the Fair Labor Standards Act (FLSA). Effective October 3, 2016, any federal wage and hour cases that are assigned to Judges Abrams, Bricetti, Carter, Daniels, Ramos, Sebel, and Woods, will be ordered directly to mediation. The mediation will take place before the initial scheduling conference, and must occur within 60 days of the order to mediate. This automatic referral to mediation for FLSA cases is similar to the program the SDNY has had in place since 2011 for all employment discrimination cases.
In light of the upcoming December 1, 2016, deadline to implement the Department of Labor’s new overtime pay requirements for white collar workers, discussed here, employers should expect an increase in wage and hour litigation. Early mediation is often an excellent tool for expedient case resolution and management.
Under the rules of the pilot program, prior to mediation, both parties must exchange disclosures, limited to the following topics:
- Any existing documents that describe plaintiff’s duties and responsibilities
- Any existing records of wages paid to and hours worked by the plaintiff (including payroll records, time sheets, work schedules, wage statements and wage notices)
- The plaintiff must produce a spreadsheet of any and all alleged underpayments and other damages
- The defendant(s) shall produce any existing documents describing compensation policies and/or practices
- If the defendant(s) intend to claim an inability to pay, the defendant(s) are required to produce proof of financial condition
In the event of a proposed settlement, the parties must prepare a joint statement explaining the basis for the settlement, including the provision for attorney fees, and an explanation of why it is fair and reasonable. Any proposed settlement reached at mediation must be presented to the assigned District Judge for approval in accordance with Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015), which held that all private FLSA settlements in cases pending in the Second Circuit must be approved by the District Judge or the Department of Labor in order to take effect.