Barry J.Miller

Representative Wage & Hour Engagements

• Prevailed in precedent-setting litigation before the Massachusetts Supreme Judicial Court in a case that established the standard for joint employment in the Commonwealth for purposes of claims under the Massachusetts Wage Act. This ruling affirmed a summary judgment win on all claims in the Business Litigation Session of Massachusetts Superior Court for a broker of door-to-door sales services on class action overtime and minimum wage claims brought by salespeople asserting that the broker was their “joint employer” under Massachusetts law.

• Prevailed in a ruling from the U.S. Court of Appeals for the First Circuit applying the FLSA’s outside sales exemption to overtime claims brought by Brand Representatives who sold products inside warehouse and big-box stores operated by other retailers. This followed a summary judgment victory in the U.S. District Court for the District of Massachusetts in favor of the employer.

• Successfully sued the Massachusetts Department of Labor Standards to overturn unduly inflated prevailing wage schedules for municipal waste hauling based on an inapplicable collective bargaining agreement pertaining to heavy construction, resulting in the Massachusetts Superior Court concluding that the agency’s action was “arbitrary and capricious.”

• Obtained a ruling from the U.S. District Court for the Southern District of New York limiting the conditional certification of a Fair Labor Standards Act collective to residents of New York and rejecting plaintiffs’ bid for a nationwide collective based on limitations on the personal jurisdiction of the federal courts over out-of-state employers. 

• Defeated conditional certification of national FLSA collective action claim and certification of Rule 23 state law claims in U.S. District Court for the Northern District of Oklahoma brought by Medical Language Specialists against their employer based on alleged dilution of hourly wage caused by unproductive breaks taken by piece-rate workers, in addition to claims relating to administration of bonus program.

• Won summary judgment on host of claims brought by dozens of police Patrol Officers against municipal employer relating to treble damages for late-paid wages, sovereign immunity from certain forms of relief afforded by wage laws, and crediting of union-negotiated benefits and perquisites against officer’s entitlements under the FLSA.

• Complete defense verdict in jury trial in US District Court for the Southern District of Texas on claim for severance pay brought by C-Level officer against software company.

• Summary judgment 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 US 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 US 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 US 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 US 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 US 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 US 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 US 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 US 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

• Won summary judgment on all counts in U.S. District Court for the District of New Jersey on disability discrimination claim brought by factory worker claiming to have been injured on the job as a result of heavy lifting.
• Obtained injunction against former management employee based on misappropriation of confidential information in US 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