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
Under the rules of the pilot program, prior to mediation, both
parties must exchange disclosures, limited to the following
Any existing documents that describe plaintiff's duties and
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
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
This article is presented for informational purposes only
and is not intended to constitute legal advice.
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