People: Barry J. Miller, Partner

Photo of Barry J. Miller, Partner

Barry J. Miller

Partner

Boston
Direct: (617) 946-4806
Fax: (617) 946-4801
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As a partner in the Labor & Employment Department of Seyfarth Shaw LLP, Mr. Miller defends employers in state and federal courts and before administrative agencies.  Mr. Miller also provides counseling and compliance advice to employers on a wide variety of employment-related legal issues, including all aspects of employee compensation, accommodation of disabled employees, workplace investigations, reductions in force, and terminations of employees in sensitive situations.  His counseling work focuses not only on identifying employment practices that comply with the law, but also the design of solutions that maximize an employer’s flexibility in managing its business. Mr. Miller is an active member of the firm’s Pay Equity Group, and provides compliance advice to employers that includes pay equity reviews designed to identify and remedy pay disparities based on gender or other protected classifications.

Mr. Miller focuses a significant share of his practice on the defense of complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states.  He has successfully defended against such claims through all phases of litigation, from early-stage motion practice, through summary judgment, class or collective action certification, jury trials and appeals.  He has defended claims involving the alleged misclassification of independent contractors, exempt status classification, reimbursement of business expenses, failure to provide benefits contributions, division of tips and gratuities, Sunday and holiday premium pay, missed meal breaks, and off-the-clock work. Mr. Miller contributes to Seyfarth Shaw’s Wage & Hour Litigation Blog and is an active member of Seyfarth Shaw’s Wage and Hour Litigation Practice Group.

In addition to his class action and wage/hour practice, Mr. Miller has successfully represented management against all types of discrimination and harassment claims, including those asserted under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, and analogous state laws.  His experience includes litigation of non-competition agreements and other restrictive covenants, in addition to the defense of whistleblower retaliation claims under state and federal law.  He has also defeated a wide variety of breach of contract and tort actions brought by employees against their employers.

Mr. Miller has been repeatedly recognized as a Rising Star by Chambers USA, the Massachusetts Super Lawyers Guide, and the Legal Media Group’s Expert Guides as being at the forefront of his generation for the practice of employment law. He was also recognized by Law 360 in 2014 as one of six Rising Stars nationwide in the employment law practice area.

As a partner in the Labor & Employment Department of Seyfarth Shaw LLP, Mr. Miller defends employers in state and federal courts and before administrative agencies.  Mr. Miller also provides counseling and compliance advice to employers on a wide variety of employment-related legal issues, including all aspects of employee compensation, accommodation of disabled employees, workplace investigations, reductions in force, and terminations of employees in sensitive situations.  His counseling work focuses not only on identifying employment practices that comply with the law, but also the design of solutions that maximize an employer’s flexibility in managing its business. Mr. Miller is an active member of the firm’s Pay Equity Group, and provides compliance advice to employers that includes pay equity reviews designed to identify and remedy pay disparities based on gender or other protected classifications.

Mr. Miller focuses a significant share of his practice on the defense of complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states.  He has successfully defended against such claims through all phases of litigation, from early-stage motion practice, through summary judgment, class or collective action certification, jury trials and appeals.  He has defended claims involving the alleged misclassification of independent contractors, exempt status classification, reimbursement of business expenses, failure to provide benefits contributions, division of tips and gratuities, Sunday and holiday premium pay, missed meal breaks, and off-the-clock work. Mr. Miller contributes to Seyfarth Shaw’s Wage & Hour Litigation Blog and is an active member of Seyfarth Shaw’s Wage and Hour Litigation Practice Group.

In addition to his class action and wage/hour practice, Mr. Miller has successfully represented management against all types of discrimination and harassment claims, including those asserted under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, and analogous state laws.  His experience includes litigation of non-competition agreements and other restrictive covenants, in addition to the defense of whistleblower retaliation claims under state and federal law.  He has also defeated a wide variety of breach of contract and tort actions brought by employees against their employers.

Mr. Miller has been repeatedly recognized as a Rising Star by Chambers USA, the Massachusetts Super Lawyers Guide, and the Legal Media Group’s Expert Guides as being at the forefront of his generation for the practice of employment law. He was also recognized by Law 360 in 2014 as one of six Rising Stars nationwide in the employment law practice area.

Education

  • J.D., Georgetown University Law Center, cum laude (2004)
    Editor, Georgetown Law Journal
  • A.M., Brown University (1998)
  • A.B., Brown University, magna cum laude (1998)

Admissions

  • Massachusetts

Courts

  • U.S. Court of Appeals for the First Circuit
  • U.S. Court of Appeals for the Second Circuit
  • U.S. Court of Appeals for the Third Circuit
  • U.S. Court of Appeals for the Fourth Circuit
  • U.S. Court of Appeals for the Federal Circuit
  • U.S. District Court for the District of Connecticut
  • U.S. District Court for the Northern District of Florida
  • U.S. District Court for the District of Massachusetts
  • U.S. District Court for the Western District of New York

Representative Engagements

Representative Wage & Hour Engagements

  • Complete defense verdict in jury trial in U.S. District Court for the Southern District of Texas on claim for severance pay brought by C-Level officer against software company.
  • Summary judgement for employer on Wage Act claims in Massachusetts Superior Court, validating commission plan provisions requiring continued employment as a condition for payment eligibility. 
  • Dismissal of class action claim in U.S. District Court for the District of Massachusetts asserting statutory claim for multiple damages under Massachusetts Wage Act based on late payment of wages to terminated employees.
  • Defense of traveling carnival operator in wage/hour class action claim under Massachusetts and New Hampshire law on behalf of carnival workers alleging unpaid working time and failure to reimburse expenses incurred by H-2B workers in federal District Court.
  • Summary judgment for employer in U.S. District Court for the District of Maryland on salesman’s claims for commissions under Maryland  Payment of Wages Act, including judgment in favor of employer on counterclaims against employee to recover advanced commissions.
  • Summary judgment for employer in U.S. District Court for the District of Massachusetts on class action wage claim brought by unionized janitorial workers, holding Massachusetts Wage Act claim preempted by Labor Management Relations Act and claim for health insurance benefits preempted by ERISA. 
  • Compelled claims of would-be lead plaintiff to individual arbitration in U.S. District Court for the Western District of North Carolina in putative FLSA collective action challenging exempts status of mortgage loan officers for regional bank.
  • Complete defense verdict in jury trial in U.S. District Court for the Eastern District of Virginia of FLSA case challenging application of outside sales exemption to mortgage loan officer working for national mortgage lender, followed by several summary judgment rulings in favor of same lender on claims brought by other loan officers.
  • Defended multiple limousine companies against overtime pay claims brought on behalf of chauffeurs in Massachusetts Superior Court and U.S. District Court for the District of Connecticut.
  • Prevailed on motion to dismiss claim for severance compensation against hospital system brought by senior executive under Massachusetts Wage Act.
  • Prevailed before Massachusetts Supreme Judicial Court in dispute over retroactive application of Massachusetts statute mandating triple damages for wage/hour violations.
  • Represented large bank in defense of putative nationwide collective action asserting misclassification of mortgage loan officers, in addition to putative class action claims based on New York and Illinois law.
  • Represented adult entertainment venues in Massachusetts and Rhode Island against class action independent contractor classification claims and on behalf of exotic dancers, in addition to state and federal administrative enforcement actions based on same practices.
  • Obtained dismissal of FLSA, ERISA and RICO claims against large hospital system in U.S. District Court for the District of Massachusetts (affirmed on appeal to First Circuit), subsequently defeating class certification in action based on amended complaint and obtaining award of substantial sanctions against plaintiffs’ counsel based on unfounded allegations.
  • Defended charter school against broad array of claims by former independent contractor, obtaining dismissal of claims and substantial sanctions against plaintiff, affirmed on appeal to First Circuit.
  • Complete defense verdict in jury trial in U.S. District Court for the Western District of New York for national homebuilder in decertified class and collective action, establishing application of FLSA outside sales exemption to new home sales representatives, affirmed on appeal to Second Circuit.  
  • Defeated multiple bids for class certification and secured disqualification of plaintiffs’ counsel on conflict of interest grounds in putative class and collective FLSA exempt status misclassification claim brought by staffing managers against national staffing agency.
  • Obtained dismissal of class action overtime claims asserted against financial services employer under New Hampshire law in case of first impression, and narrowing nationwide FLSA collective action overtime claim to one facility.
  • Summary judgment for regional Massachusetts bank on sizable severance pay claim under ERISA-governed severance plan.
  • Obtained sizable judgment against employee who  surreptitiously altered severance agreement in first Massachusetts case to apply “fraud in factum” doctrine in employment context.

Representative Other Cases

  • Obtained injunction against former management employee based on misappropriation of confidential information in U.S. District Court for the District of New Jersey under New Jersey Trade Secrets Act.
  • Obtained dismissal of complaint against background check vendor under Fair Credit Reporting Act and state law brought on behalf of applicant for independent contractor position allegedly rejected based on criminal history information.
  • Secured walkaway settlement from former employee physician asserting wrongful termination claims on various tort theories.
  • Prevailed on early motion to dismiss national origin discrimination claims brought by former bank employee in U.S. District Court for the District of Massachusetts, affirmed by First Circuit.
  • Summary judgment extinguishing on ERISA-preemption grounds all claims brought by employee who alleged sex discrimination in employer’s decision not to include plaintiff in layoff and severance program.
  • Summary judgment for retail employer in Massachusetts Superior Court on claims of age discrimination, handicap discrimination, false imprisonment, and negligent hiring and supervision brought by employee terminated for theft.
  • Obtained early dismissal of employee’s claim in Massachusetts Superior Court that employer had terminated him for consulting attorney regarding legal rights, affirmed by Massachusetts Appeals Court

Presentations

  • “The Nuts and Bolts of Complying with the New Pay Equity Law: Pay Equity Audits, Salary History & Pay Transparency,”  Boston Bar Association Panel Presentation (June 2017)
  • “Massachusetts’ Pay Equity Act: Compliance Strategies for Stringent New Requirements,” Lorman Education Services Webinar (March 2017)
  • “Hot Topics in Employment Law and the Affordable Care Act,” American Association of Credit Union Leagues, Finance/Administration & HR Fall Conference (September 2014)
  • “Employment Laws Made Simple: Internal Investigations and Wage and Hour Issues,” National Business Institute (May 2012)
  • “Independent Contractor vs. Employee,” MCLE Program (November 2010)
  • “Hourly Workers: Employee Rights, Employer Obligations,” MCLE Program (June 2008)

Publications