Mr. Madden has dedicated the last twenty five years to counseling employers on wage and hour and employment issues and successfully defending employers against wage and hour class actions and other employment lawsuits. Mr. Madden has worked on hundreds of class actions with putative classes ranging up to hundreds of thousands of employees and potential damages at times over a billion dollars. These class actions have involved wage calculation and payment, compensation design, entitlement to overtime and benefits, off-the-clock claims, rest and meal period claims, challenges to exempt status, claims to employee status by independent contractors and gig economy workers, unfair business practices, discrimination, and retaliation.
Advice and Compliance
Mr. Madden serves as employment counsel for international corporations, non-profits, government entities, and local companies. Among other things, he:
- advises clients on wage and hour, wage payment, employee classification, and other employment issues;
- drafts and reviews employment agreements and policies on time reporting, scheduling, payroll, compensation, and other employment issues;
- designs, drafts, and reviews compensation, incentive compensation, bonus, piece rate, and commission plans and policies;
- conducts friendly audits to identify and correct potential violations that could result in legal liability and provides training to help employers stay in legal compliance; and
- works with our business and bankruptcy attorneys to address employment issues that arise in the context of purchases, sales, mergers, layoffs, and shutdowns, including challenges with transitioning employees from one company, compensation system, set of operational rules, or classification to another, with the goal of avoiding challenges, litigation, and liability.
Class Action Litigation
Mr. Madden’s class action litigation experience, when combined with his substantive knowledge of wage and hour law, enables him to anticipate issues, identify and raise creative defenses that others may miss, think strategically to avoid or minimize potential problems class actions present, and effectively defend employers against wage and hour and other class action claims. He is special wage and hour counsel for government entities and also consults with other law firms on strategy and tactics. Recent examples of his experience include:
- Class Certification Denied/Washington Supreme Court Win. Brady v. AutoZone involved wage and meal period claims covering thousands of retail employees. The judge denied class certification (2015 WL 5732550 (W.D. Wash. 9/30/2015)), but certified key legal issues to the Washington Supreme Court (2016 WL 7733094 (W.D. Wash. 9/6/2016)). That Court held that employees have an initial burden of proving they did not receive meal periods, employees may waive meal periods, and waivers need not be in writing. 188 Wn.2d 576 (2017). The judge then reaffirmed his denial of certification in 2018, and the matter was dismissed in 2019.
- Defense Trial Verdict. Frechin v. King County involved wage and meal period claims for thousands of Metro transit operators. We carved down the claims with summary judgment motions and an interlocutory appeal (194 Wn.App. 1002 (2016)), then had a 6-day trial. In February 2018, the judge entered judgment in our favor, addressing two issues of first impression. First, the court explained what is necessary for a public employer to negotiate rest and meal periods under RCW 49.12.187 and found that Metro satisfied those requirements. Second, the court discussed how to apply the Supreme Court ruling in Brady v. AutoZone and found the plaintiff did not establish a prima facie case of meal period violations.
- Summary Judgment in Nationwide FLSA Action/Ninth Circuit Win. Douglas v. Xerox Business Services was a nationwide FLSA collective action asserting off-the-clock work claims and challenging the design of our client’s compensation plans, claiming the plans used illegal piece rates and failed to assure that all work activities were compensated by those rates. We narrowed the alleged class from hundreds of thousands to a final opt-in class of 3,367. 2014 WL 3396112 (W.D. Wash. 7/10/2014). The court then granted summary judgment against the named plaintiffs. 2015 WL 10791972 (W.D. Wash. 12/1/2015). The Ninth Circuit affirmed, adopting the employer-friendly test for which we advocated. 875 F.3d 884 (9th Cir. 2017). In 2018, the court dismissed the remaining 3,367 opt-in claims with prejudice.
- Compensation Litigation Under Washington Law. Hill v. Xerox Business Services involves Washington state claims parallel to the FLSA claims in the Douglas action. The court denied summary judgment, but certified this issue for immediate appeal. The Ninth Circuit then certified the issue to the Washington Supreme Court. 868 F.3d 758 (9th Cir. 2017). That Court issued an opinion finding that our client’s compensation plans were not piece rate plans, but declined to decide whether the plans paid employees on an hourly or some non-hourly basis. 191 Wn.2d 751 (2018). That issue is now pending before the Ninth Circuit.
- Summary Judgment in California Prevailing Wage Class Action. Busker v. Wabtec Corp. involves class claims for statutory and contractual prevailing wages and California labor code violations. The court granted our motion for summary judgment, dismissing the action. 2017 WL 90369 (C.D. Cal. 1/10/2017). In September 2018, the Ninth Circuit rejected a challenge to removal jurisdiction, affirmed dismissal of the contract claim, and certified the statutory claim to the California Supreme Court, where it is pending. 903 F.3d 881 (9th Cir. 2018).
- Order Dismissing Class Action: Jama v. Avis Budget Group involved SeaTac Minimum Wage Act claims for hundreds of shuttle drivers who worked for a subcontractor, but who asserted our client was a joint employer. The court certified the class, and then immediately dismissed the case in its entirety based on procedural issues that we set up with strategic decisions at the start of the case. 2017 WL 7053970 (W.D. Wash. 10/27/2017).
- Order Compelling Individual Arbitration: Pyle v. VXI Global Solutions involved nationwide FLSA collective action and Ohio class action claims for thousands of call center agents for violations of wage and meal period requirements. The court granted our motion to compel individual arbitration and dismissed the lawsuit, accepting our argument that the NLRB’s prohibition of class waivers did not apply because our client’s agreement was merely silent on class arbitration. Case No. 5:17-cv-00220-SL (N.D. Ohio 11/6/2017).
- Ohio Court of Appeals Arbitration Wins: Shakoor v. VXI Global Solutions involved Ohio class action claims for thousands of call center agents for violations of a variety of state wage requirements. We moved to compel individual arbitration, but the circuit court held that it could not determine whether class arbitration was allowed. On appeal, the appellate court reversed, holding this was a gateway issue. 2015 Ohio 2587, 35 N.E.3d 539 (Ohio App. 2015). The circuit court then ordered individual arbitration and dismissed the case. The Court of Appeals affirmed the circuit court’s interpretation of the agreement, but remanded so the circuit court could consider the NLRB’s and U.S. Supreme Court’s positions on the issue. 2017 Ohio 8018, 2017 WL 4350986 (Ohio App. 9/27/2017). After the U.S. Supreme Court ruled that individual arbitration agreements are legal, plaintiff stipulated to proceed on an individual basis.
Other examples of Mr. Madden’s litigation success include:
- Edwards v. Lockheed Martin Corp., 954 F.Supp.2d 1141 (E.D. Wash. 2013), aff’d, 617 Fed.Appx. 648, 61 Employee Benefits Cas. 1399 (2015) -- Dismissing contract and unjust enrichment claims on summary judgment based on ERISA preemption.
- Brennan v. Opus Bank, 2013 WL 2445430 (W.D. Wash. 6/5/2013), aff’d, 796 F.3d 1125 (9th Cir. 2015) -- Dismissing executive’s compensation claims against bank and our client, the CEO, in favor of arbitration.
- Mejias v. Banco Popular de Puerto Rico, 86 F.Supp.3d 84 (D.P.R. 2015) -- Limiting FLSA notice class to Puerto Rico, and subsequently denying Rule 23 certification.
- Castillo v. Toll Bros, Inc., 197 Cal. App. 4th 1172 (2011) -- Dismissing class action claims by employees of subcontractors for overtime, breaks, and other violations on summary judgment in a case of first impression interpreting the application of California Labor Code § 2810.
- Parmar v. Safeway Inc., Case No. 2:10-cv-00241 (W.D. Wash. 2010) -- Dismissing nationwide FLSA and state Rule 23 class claims for overtime by pharmacists on summary judgment and denying plaintiff’s motions for FLSA notice and class certification as moot.
- Gen. Teamsters Local No. 174 ex rel. Gasca v. Safeway Inc., 2010 WL 1981821 (Wash. App. 2010) -- Dismissing class action claims for overtime and challenging the structure of the company’s activity based compensation system on summary judgment based on the Washington Motor Carrier Act exemption.
- Sellars v. Safeway Inc., Case No. 0505-04785 (Multnomah Circ. Ct. 8/16/2007), aff’d, Case No. A136854 (Or. App. 7/15/2009), rev. denied (Or. 1/22/2010) -- Dismissing on summary judgment Oregon wage, contract, and unjust enrichment claims in 82-plaintiff collective action.
- Burk v. Contemporary Home Services, 2007 WL 2220279 (W.D. Wash. 8/1/2007) -- Obtaining order denying FLSA notice and Rule 23 class certification in class action brought on behalf of hundreds of house cleaners.
- Gieg v. DRR Inc., 407 F.3d 1038 (9th Cir. 2005) -- In three consolidated cases lost by other counsel, obtaining appellate decision reversing and directing judgment as a matter of law in favor of our car dealer client based on the FLSA’s Retail Sales and Service Exemption.
- Stahl v. Delicor of Puget Sound, Inc., 148 Wn.2d 876 (2003) -- Dismissing class action overtime claims against a retail vending company on summary judgment in a case of first impression applying Washington’s Retail Sales and Service Exemption.
- Albertson’s Inc. v. NLRB, 301 F.3d 441 (6th Cir. 2002) -- Obtaining Sixth Circuit ruling vacating NLRB determination and holding that limiting storefront access to known charitable organizations is not discrimination against labor organizations.
- Anheuser Busch, Inc. v. Goewert, 82 Wn.App. 753 (1996) -- Denying unemployment compensation benefits to employee who left employment with our client after accepting a substantial payment under a voluntary early retirement program.
- Morehouse v. Goodnight Bros. Constr., 77 Wn.App. 568 (1995) -- Affirming Rule 12(b)(6) dismissal of tort claims against construction company whose equipment was stolen and then used in the commission of a crime.
Government Audits and Investigations
Mr. Madden frequently represents employers in federal, state, and local audits and investigations for alleged violations of wage and hour, scheduling, leave, safety, and discrimination requirements as well as alleged failure to pay workers compensation, unemployment, and similar tax amounts. He prepares employers for initial agency visits, represents clients during those visits, helps process and respond to follow-up requests, responds to and negotiates over initial agency determinations, and defends employers against improper determinations and excessive civil money penalties.
For instance, he:
- Defended a financial institution against DOL claims that it was allowing off-the-clock work nationally, helped isolate the concern, and negotiated a resolution focused on a single recently-acquired operation.
- Defended a national retirement home business against challenges to the exempt status of certain classifications of employees and convinced DOL that they were properly classified.
- Defended a national employer in a local agency’s investigation of alleged discrimination against and harassment of Hispanic workers and, after dozens of interviews (often with interpreters) and the submission of detailed workforce data, obtained a no cause finding on both an individual and class level.
- Assisted a national company with an appeal of a DOL injunction and order of restitution against the client for failing to count certain training time as hours worked and obtained a Sixth Circuit decision reversing the judgment and ordering judgment for the client.
- Defended a regional retailer against an EEOC investigation of discriminatory hiring practices over a four year period and, after a detailed analysis of hiring information and extensive negotiations, negotiated a class-wide settlement with a minimal payment.
- Defended a national power company against willful and serious violations under WISHA, and convinced the agency to dismiss the claimed violations in their entirety.