FLSA Litigation — A Primer for Paralegals Foreclosure
David L. Kern
I. INTRODUCTION
To be an effective paralegal on a Fair Labor Standards Act (“FLSA”) case, a paralegal first
must understand how fundamentally different the FLSA is from other labor and employment
laws. The FLSA begins with the words: “The Congress hereby finds… the existence…
of labor conditions detrimental to the maintenance of the minimum standard of
living necessary for health, efficiency, and general well-being of workers….” 29 USC §
202(a). Thus, the basic American belief: “A fair day’s pay for a fair day’s work” is at the
very core of the FLSA’s overtime pay provisions. A.H. Phillips, Inc. v. Walling, 324 U.S.
490, 493 (1945)(quoting from a speech by President Franklin D. Roosevelt to Congress,
May 24, 1934). This principle is so engrained in the American consciousness that it cuts
across philosophical lines. For this reason, even the most management-oriented of jurors
may find in favor of employees when the facts demonstrate that workers have been
deprived of “a fair day’s pay” under the FLSA. Moreover, because of the FLSA’s historical
origins, and the basic principles of economic fairness that it embodies, the Act’s statutory
scheme is far different than other employment laws. Therefore, the paralegal must put
on a very different thinking cap when working on FLSA cases.
Congress first adopted the FLSA in 1938 and has amended it numerous times since.
With one notable exception (the Portal to Portal Act), each of the amendments resulted
in an expansion of FLSA’s scope. FLSA litigation combines the application of a statute, 29
USC §§ 201 et seq., and a comprehensive set of implementing regulations. 29 CFR §§ 510
et seq. FLSA claims can be enforced either by the Department of Labor (DOL) (29 USC
§ 216(c)) or by individual employees acting through private attorneys. 29 USC § 216(b).
To add to the complexity, a dizzying array of judicial interpretations exists of FLSA’s provisions
and regulations. In some respects, these interpretations differ from Circuit to
Circuit and even within the same Circuit. Indeed, one of FLSA’s unique aspects is that a
very similar set of facts may produce a very different result in two different courts for
reasons that are not always readily apparent. Nevertheless, it remains true that there are
certain core principles embodied within FLSA that enable it to serve by design as a powerful
tool against economic injustice in the workplace.
II. UNIQUE FEATURES OF FLSA
MATTERS
Many FLSA cases settle and relatively few proceed to trial. There are many reasons for
this. One is that the damages in an FLSA case are often far more quantifiable than in
other types of employment matters.
Another is the significant and unusual
risks that FLSA cases pose for employers.
The following are some of the factors in
FLSA cases that often militate in favor of a
negotiated resolution.
A. Allocation of Burdens of Proof.
One fundamental difference between FLSA and other employment laws is the
manner in which the burden of proof is
allocated. Employment law practitioners
are accustomed and conditioned to the
idea that employees bear the burden of
proof to show that discrimination, or
retaliation, has occurred. However, in
FLSA overtime pay litigation, it is often
the employer, rather than the employee,
who bears the burden of proof. For example,
wage and hour cases often turn on the
issue of whether an employer is entitled to
claim an exemption from overtime pay
requirements. The burden of proof to
establish entitlement to FLSA exemptions
falls squarely on the shoulders of the
employer, not the employee. See, e.g.,
Walling v. General Industries, Co., 330 U.S.
545 (1947); Blackmon v. Brookshire
Grocery Co., 835 F.2d 1135, 1137 (5th
Cir.1988); Singer v. City of Waco, 324 F.3d
813, 820 (5th Cir. 2003), cert. denied, 540
U.S. 1177 (2004); followed in Billings v.
Rolling Frito-Lay Sales, LP, 413 F. Supp. 2d
817, 820 (S.D. Tex. 2006). See also Bondy v.
City of Dallas, 77 Fed. Appx. 731, 732 (5th
Cir. Oct. 9, 2003). This is a significant
issue during the pre-trial and trial of FLSA
matters and imposes evidentiary burdens
and obligations on employers that they are
not generally accustomed to bearing.
B. Affirmative Obligations Imposed by FLSA.
The FLSA also imposes affirmative obligations
on employers to pay overtime to all
eligible employees. Absent an exemption,
the FLSA requires employers to pay
employees “not less than one and one-half
times [the employee’s] regular rate” of pay
for every hour worked in excess of forty
hours in a workweek. 29 U.S.C. §207(a)(1).
Thibodeaux v. Exceutive Jet Int'l, Inc., 328
F.3d 742, 749 (5th Cir. 2003). Moreover, an
employer with actual or constructive
knowledge that a non-exempt employee is
working overtime must pay that employee
overtime whether a claim for it is made or
not. See Newton v. City of Henderson, 47
F.3d 746, 748 (5th Cir. 1995)(“An employer
who is armed with [knowledge an employee
is working overtime] cannot stand idly
by and allow an employee to perform
overtime work without proper compensation,
even if the employee does not make a
claim for the overtime compensation.”);
quoted in Harvill v. Westward Communs.,
L.L.C., 433 F.3d 428, 441 (5th Cir. 2005).
The employer’s affirmative obligation to
pay correctly under FLSA raises important
issues concerning the management of discovery
and trials in FLSA matters.
C. Narrow Construction of FLSA
Exemptions.
Similarly, FLSA exemptions are narrowly
construed against employers and only
apply to those employees who fit “plainly
and unmistakably within their terms and
spirit.” Arnold v. Ben Kanowsky, Inc., 361
U.S. 388, 392 (1960). See also Auer v.
Robbins, 519 U.S. 452, 462-63 (1997).
Therefore, when a claimed exemption is at
issue and the employer is unable to meet
the burden of proving entitlement to that
exemption, the employer loses the liability
portion of the case. For this reason, as radical
as it may seem, it is not uncommon
for summary judgment to be granted
against the employer as to liability when
the employer fails to meet its burden of
showing entitlement to a claimed exemption.
See, e.g., Albanese v. Bergen County
Sheriff ’s Dept., 991 F. Supp. 410, 426-27
(D.N.J. 1997). Moreover, even if an
employer survives summary judgment on
the issue of an exemption, the employer
still has the burden of proof at trial on that
exemption. As noted, this can be a very
difficult burden to meet.
D. Recordkeeping Requirements.
FLSA’s recordkeeping requirements provide
another good example of how different
this area of the law is from other
employment laws and how these differences
impact upon discovery and trials in
FLSA matters. Employers are required by
FLSA to maintain certain records of hours
worked and wages paid. 29 CFR § 516. If
an employer fails to maintain these
required records, the employees are then
entitled to use their best good faith estimates
of hours worked to compute damages.
The burden of proof then falls upon
the employer to rebut these estimates. See,
e.g., Anderson v. Mount Clemens Pottery
Co., 328 U.S. 680, 687 (1946). If the
employer is unable to rebut the estimates
(which can be a very difficult task in the
absence of the required records), the
employees’ good faith estimates are used
to calculate the damages. See discussion
infra.
Thus, in this area of the law (unlike
other areas of employment law) employees
may gain a distinct advantage in pre-trial
litigation and at trial when an employer
fails to maintain proper records of hours
worked. See, e.g., McLaughlin v. Ho Fat
Seto, 850 F.2d 586, 589 (9th Cir. 1988). For
example, in an off-the-clock violation case
the employees can put on testimony of
their hours worked while off the clock,
even if those hours are only approximate.
Anderson v. Mount Clemens Pottery Co.,
328 U.S. 680, 687 (1946). It then falls to the
employer to attempt to show that the
employees’ estimates are overstated, or not
in good faith. Clearly, this can be a very
daunting task. Courts continue to hold
that an employer cannot complain about
the speculative nature of employees’ damages
estimates when the imprecision arises
precisely because of the employer’s failure
to maintain the required records. See, e.g.,
Reich v. Stewart, 121 F.3d 400 (8th Cir.
1997).
In addition, failure to comply with the
recordkeeping requirements of FLSA is a
violation of the Act in and of itself which
can subject the employer to various penalties.
See Castillo v. Givens, 704 F.2d 181,
194 (5th Cir. 1982), cert. denied, 464 U.S.
850 (1983); Marshall v. Partida, 613
F.2d 1360, 1362 (5th Cir. 1980);
Hopkins v. Texas Mast Climbers,
LLC, 152 Lab. Cas. (CCH) ¶35,100
(S.D. Tex. Dec. 14, 2005). For this
reason, testimony by plaintiffs that
they are entitled to overtime pay for
working while off-the-clock puts the
employer in a double-bind situation
at trial. First, the employer has difficulty
defending the damages allegations
without records of the hours
worked. Second, the absence of the
records is itself problematic from a
liability perspective.
E. Representative Testimony.
In addition to the foregoing unique
aspects of FLSA litigation, the class action
aspects of FLSA collective actions also have
a direct and sometimes dramatic effect on
discovery and trial in FLSA cases. The
FLSA provides specifically for claims to be
brought collectively by groups of employees.
See 29 USC § 216(b). These FLSA “collective
actions” are an opt-in form of representative
class action in which each
plaintiff must affirmatively file a “Consent
Form” with the court to join the class. (By
comparison, in a Rule 23 “opt-out” class
action, the plaintiffs are automatically
included if they fit the definition of the
class and do not opt out.) In FLSA collective
actions, because all of the class members
are known, a lenient “similarly situated”
standard is applied to determine
whether the class will be certified. See
Lusardi v. Xerox Corp., 118 F.R.D. 351
(D.N.J. 1987); Mooney v. Aramco Services
Co., 54 F.3d 1207 (5th Cir. 1995). Whereas,
in Rule 23 class actions where large numbers
of unknown plaintiffs are included a
more difficult four prong standard
(numerosity, commonality, typicality, and
adequacy) is used to assess the propriety of
class certification. But see Shushan v.
Univ. of Colorado, 132 F.R.D. 263 (D.
Colo. 1990)(applying Rule 23 standards to
FLSA collective action).
FLSA collective actions often involve
hundreds and even thousands of employees,
who in the aggregate are seeking very
substantial dollars in unpaid overtime
compensation. Because courts cannot
spend months and months hearing testimony
from all of the plaintiffs in a collective
action, the cases are typically tried by
hearing the testimony of class representatives.
See, e.g., Brennan v. General Motors
Acceptance Corp., 482 F.2d 825, 829 (5th
Cir. 1973). This practice has been widely
accepted as an efficient and effective
means by which representative plaintiffs
can create the necessary inferences that
violations of the FLSA have taken place
against a class of employees. Courts sometimes
allow the plaintiffs to designate their
trial representatives. On other occasions,
judges allow plaintiffs to pick some of the
trial representatives and defendant to pick
some. Regardless of the method employed,
the object is to hear testimony from a
group that is representative of the class so
that the results of the trial can be applied
across the class as a matter of just and reasonable
inference. See, e.g., Secretary of
Labor v. DeSisto, 929 F.2d 789, 792 (1st Cir.
1991)
A good example of how this works in
an “off the clock” claim is Bull v. U.S., 68
Fed. Cl. 212 (Fed. Cl. Sept. 27, 2005);
Clarified by: Bull v. U.S., 68 Fed. Cl. 276
(Fed. Cl. Oct. 14, 2005). Bull concerned
“off the clock” claims of a nationwide
group of federal employees at the
Department of Homeland Security.
Bull was tried with representative
testimony from six plaintiffs – three
chosen by plaintiffs and three
selected by defendant. The trial produced
a judgment in favor of the six
representatives on some, but not all,
of the issues. Id. The plaintiffs were
awarded back pay and liquidated
damages under FLSA for two years
on some theories and (based on a
finding that certain violations were
“willful”) for a full three year period
on other theories. Id. The judgment
was appealed to the Federal Circuit
which heard oral argument in
December 2006 and issued a decision
on March 15, 2007, affirming the trial
court in full. Bull v. U.S., 479 F.3d 1325
(C.A. Fed. 2007). That ruling paves the
way for the results of the trial to be projected
across the class.
Thus, the trial of FLSA collective
actions with representative testimony, like
the trial of other forms of class actions,
can create mass liability and class-wide
damages recoveries on the strength of the
testimony of a fairly small number of class
representatives.
III. BURDENS OF PROOF
A. Plaintiffs’ Liability Burdens
As a general rule, plaintiffs have the burden
at trial of proving that there has been
a violation of the FLSA. “The party asserting
a wage claim bears the burden of proving
by a preponderance of the evidence all
elements necessary to establish a violation
of the FLSA.” McMillian v. Foodbrands
Supply Chain Servs., Inc., 272 F. Supp. 2d
1211, 1217 (D. Kan. 2003)(denying defendant’s
motion for summary judgment
because plaintiff created fact issue as to
elements of prima facie case). Plaintiffs
suing more than one defendant also have
the burden of proving joint employment.
Martinez-Mendoza v. Champion Int’l
Corp., 340 F.3d 1200, 1209 (11th Cir. 2003).
In an “off-the-clock” case, Plaintiffs
also have the burden at trial of proving
their employer actually, or constructively,
knew that the plaintiffs were working
unrecorded overtime hours. Bailey v.
County of Georgetown, 94 F.3d 152, 157
(4th Cir. 1996). As a practical matter, however,
this is often not difficult for plaintiffs
to do because there is often corroborating
testimony, or physical evidence, or both,
of the work that is performed while “off-the-
clock.” For example, in the Bull case
cited above, the federal employees, canine
enforcement officers, were required to
take home dirty training towels and launder
them on their own time without pay
while “off-the-clock.” Given the absence
of washers and dryers at the workplace, the
employer was unable to explain how clean
training towels were available at the workplace
if the officers were not performing
this work while “off-the-clock.” In addition,
at trial there was corroborating testimony
from supervisors who themselves
laundered training towels “off-the-clock”
and without pay when they were canine
enforcement officers.
“Off-the-clock” work practices are
often so engrained in the workplace and in
the culture of the employer that there is
ample corroborating testimony from a
wide variety of co-workers and supervisors
that the illegal pay practices are in effect.
Examples of supporting evidence also can
be found in the paperwork that employees
work on at home and then bring to work.
In addition, evidence of unpaid hours
worked often is available from other
sources such as daily logs, vehicle logs,
expense accounts, project reports and the
like. See, e.g., AFSCME v. State of
Louisiana Dep’t of Health & Hospitals,
2001 WL 29999 (E.D.La. 2001)(holding
that in the absence of employer time
records an employee’s work records were
sufficient to support his claims for unpaid
overtime). See also Chao v. Vidtape, Inc.,
196 F.Supp. 2d 281 (E.D.N.Y. 2002)(holding
that the testimony of 21 employees
concerning their unpaid hours worked was
sufficient to create a “just and reasonable
inference” to support the overtime claims
of 66 employees in the plaintiff class.
Plaintiffs also have the burden of proof
on triggering the three year statute of limitations
by showing that an employer’s violations
of the FLSA were willful, i.e., that
the employer either knew or showed reckless
disregard for whether its conduct was
in violation of the FLSA. McLaughlin v.
Richland Shoe Co., 486 U.S. 128, 133
(1988). See, e.g., Karr v. City of Beaumont,
950 F.Supp. 1317, 1325 (E.D. Tex. 1997). See
also Singer v. City of Waco, 324 F.3d 813,
822 (5th Cir. 2003) (holding that plaintiffs’
evidence was sufficient to support a finding
of willfulness); Bull v. U.S., 68 Fed. Cl.
212 (Fed. Cl. Sept. 27, 2005) (same).
B. Defendant’s Burdens
As noted above, employers have the burden
of proof at trial on exemptions.
Moreover, exemptions are affirmative
defenses which must be properly pled or
they are waived. See, e.g., Magana v.
Commonwealth of the Northern Mariana
Islands, 107 F.3d 1436 (9th Cir. 1997)(holding
that an exemption from overtime
requirements was unavailable to defendant
because it was not properly pled as an
affirmative defense). See also Corning
Glass Works v. Brennan, 417 U.S. 188, 196-
97 (1974) (stating the general rule that
exemptions under the FLSA are affirmative
defenses for which the employer has
the burden of proof ). See also Marshall v.
Mammas Fried Chicken, 590 F.2d 598, 599
(5th Cir. 1979) (restaurant claiming executive
exemption for chef had burden of
proof ); Donovan v. Hamm’s Drive-Inn,
661 F.2d 316, 317-18 (5th Cir. 1981) (exemption
waived by failure of employer to
plead it).
Employers also have the burden of
proof on deductions and credits. See, e.g.,
Brennan v. Veterans Cleaning Serv., 482
F.2d 1362, 1370 (5th Cir. 1973). Some of
these have also been held to be affirmative
defenses which must be pled or they are
waived. For example, an employer’s claim
it is entitled to exclude bonuses from the
regular rate of pay is an affirmative defense
which must be pled or it is waived. See,
e.g., McLaughlin v. McGee Bros. Co., 681
F. Supp. 1117, 1133 (W.D.N.Y. 1988).
Similarly, claims of entitlement to the
sleep time and meal time exceptions provided
in the DOL regulations for public
fire and law enforcement employees are
affirmative defenses. See, e.g., Johnson v.
City of Columbia, 949 F.2d 127, 129-30 (4th
Cir. 1991); Rotondo v. City of Georgetown,
869 F. Supp. 369, 373 (D.S.C. 1994).
IV. DAMAGES EVIDENCE
The damages evidence during discovery
and at trial will vary greatly depending on
whether the overtime claims arise from a
misclassification, or are for “off-the-clock”
violations. In either case, this is a time and
document-intensive area in FLSA matters
and an area where a skilled paralegal can
make a tremendous contribution to the
success of the case.
A. Damages in a Misclassification Matter
In a misclassification case, the defendant’s
own time and pay records may be all that
is required for the plaintiffs to put on evidence
of damages. For example, an
employer could classify a group of assistant
managers as exempt, pay them a
salary and not pay overtime to those
employees for hours worked over 40 in a
week. In keeping with the exempt classification,
an employer who genuinely
believes the employees are exempt from
overtime pay requirements may require
the employees to work more than 40
hours in a week, but not pay them any
additional pay for the hours worked over
40. However, if the DOL or a court later
finds that the employees were misclassified,
then the employer becomes obligated
to pay overtime for those hours worked in
excess of 40 in a work week. In that event,
presuming the employer has maintained
records of hours worked, the employer’s
own time records may be introduced in
evidence to show the hours for which
overtime pay is due. It then becomes a
simple matter to calculate the overtime
pay rate and determine the overtime pay
that is due.
B. Damages in an “Off-The-Clock”
Matter
In contrast to the foregoing, damages
evidence in “off-the-clock” cases (and in
misclassification cases where no records of
hours worked have been maintained by
the employer) must be created by the
plaintiffs. As noted above, when an
employer fails to maintain records of
hours worked, the employees are entitled
to use their best good faith estimates of
hours worked to compute damages. See,
e.g., Anderson v. Mount Clemens Pottery
Co., 328 U.S. 680, 687 (1946). One effective
way for plaintiffs to do this is to prepare
spreadsheets which itemize and summarize
the damages which the plaintiffs are
claiming. Expert testimony can support
this methodology and the spreadsheets
themselves can be supported by the testimony
of the plaintiffs concerning the
amount of time they generally or approximately
spent each week in the unpaid “off-the-
clock” activities. The total of all such
time per week can then be multiplied by
the overtime pay rate for that week to produce
a weekly subtotal of the amount due
for that week. The weekly subtotals can
them be summed to produce the total
amount of claimed damages for that
employee.
A sample spreadsheet itemizing “off-the-
clock” damages is attached to this
paper as Attachment “A”. It is a recreation
of an actual damages spreadsheet of a representative
trial plaintiff which was admitted
into evidence at the trial of an “off-the-
clock” FLSA matter and illustrates
how the damages may be calculated and
submitted into evidence in this type of
FLSA case.
V. EXPERT TESTIMONY
Two types of experts are generally useful
in the trial of FLSA collective action matters:
1) Wage and Hour Experts; and 2)
Economists (particularly statisticians).
A. Wage and Hour Experts
The typical wage and hour expert is an
individual who has retired from many
years as a wage and hour investigator with
the DOL. One such expert who is well
known to the author retired from a 30 year
career as a wage and hour investigator
with the DOL and started a consulting
practice. This expert works on both the
defense and the plaintiff side in fairly
equal measure. There is virtually no type
of wage and hour matter he did not investigate
while with the DOL.
In a recent FLSA trial, this expert was
certified by the court as an expert in DOL
wage and hour practices and the court
accepted his testimony on many liability
and damages matters framed in the context
of: “This is how the DOL investigated
such matters during my 30 years as a wage
and hour investigator”, or “This would be
considered a violation of the FLSA by the
DOL for the following reasons”, or “At the
DOL, this is how we calculated damages
on violations of this type.” Etc.
Such testimony obviously cannot supplant
the court’s own powers to make the
ultimate determinations concerning matters
of law in an FLSA trial. However, such
testimony can provide a court with useful
and beneficial guidance on many matters
in an FLSA action and courts generally
will accept such expert testimony if it is
properly framed and presented.
B. Statisticians
In the trial of a large FLSA representative
class action it is also useful to have expert
testimony from a statistician that the
information obtained from the “sample”
of plaintiffs who testify is statistically representative
of the larger group of plaintiffs.
This is useful because the object of an FLSA trial, at least from the plaintiffs’ perspective,
is to win the case and create evidence
of damages for ALL the plaintiffs,
not just for the plaintiffs testifying as trial
representatives.
VI. ATTORNEYS’ FEES
A large potential downside for employers
taking FLSA actions to trial is that the
statute expressly provides for recovery of
“reasonable” attorneys’ fees, “in addition
to any judgment awarded” to the plaintiffs.
29 U.S.C. § 216(b). In Singer v. City
of Waco, 324 F.3d 813, 823 (5th Cir. 2003),
cert. denied, 540 U.S. 1177 (2004), the Fifth
Circuit approved the trial court’s calculation
of FLSA attorney’s fees using a
lodestar method and the factors identified
in Johnson v. Georgia Highway Express,
488 F.2d 714, 717-19 (5th Cir. 1974). See also
Camargo v. Trammell Crow Interest Co.,
318 F. Supp. 2d 448 (E.D. Tex. 2004), Lewis
v. Hurst Orthodontics, PA, 292 F. Supp. 2d
908 (W.D. Tex. 2003), and Hopkins v.
Texas Mast Climbers, LLC, 152 Lab. Cas.
(CCH) ¶35,100 (S.D. Tex. Dec. 14, 2005).
Approval of attorneys’ fees is an inherent
part of a court’s fairness review when
FLSA collective actions are settled and is a
necessary part of a court’s award in the
event a case is tried and results in a favorable
outcome for plaintiffs. See, e.g.,
Uphoff v. Elegant Bath, Ltd., 176 F.3d 399
(7th Cir. 1999) (upholding a district court’s
decision to reduce the plaintiffs’ attorney’s
fee award). For this reason, both counsel
and paralegals should assure that they
keep detailed, accurate and contemporaneous
records of all time spent working on
FLSA collective actions.
Attorneys’ fees also may be awarded as
a proportion of the class recovery. In that
event, 25% of the total amount of a class
recovery has been found to be a reasonable
amount for class counsels’ attorneys’
fees. See, e.g., Toreros v. Tucson Elec.
Power Co., 8 F.3d 1370, 1376 (9th Cir. 1993)
(finding 25% of the recovery to be a presumptively
reasonable “benchmark” for
the attorneys’ fee award). Fees awarded on
a percentage basis are subject to adjustment
either upward or downward when a
court reviews the work performed and the
fees sought. See, e.g., Wing v.Asarco, Inc.,
114 F.3d 986 (9th Cir. 1997).
Due to the important public policy
concerns addressed by the FLSA, courts
have sometimes found that attorneys are
entitled to fee awards greatly in excess of
the damages recovered. See, e.g., Perrin v.
John B. Webb & Associates, Inc., 2005 WL
2465022 (M.D. Fla. Oct. 6, 2005) (awarding
$7,446.00 in fees in a case where the
plaintiff recovered only $270 and recognizing
that “in order for plaintiffs with minimal
claims to obtain counsel, those counsel
must be able to recover a reasonable fee
for their time.”). In addition, courts have
recognized that even when only a small
part of the damages are recovered in an
FLSA matter, attorneys may still be entitled
to a full fee award. See, e.g., Singer v.
City of Waco, 324 F.3d 813, 829-30 (5th Cir.
2003) (awarding full fees where fire fighters
sought $5 million in FLSA matter, but
only recovered $180,000).
David L. Kern graduated from the
University o f Texas at El Paso with honors
in 1979 and subsequently received his J.D.
d e g ree from the University of Texas,
Schoo l of Law (“U.T.”) in Austin, Texas in
1983. While at U.T., he served as a Note
Editor on t he Texas Law Review. Mr. Kern
is licensed to practice law in Texas and
D.C. and has been Board Certified in
Labor and Employment Law by the Texas
Board of Legal Specialization since 1993.
Mr. Kern’s fellow lawyers have recognized
him as one of The Best Lawyer’s In
America (2005, 2006 and 2007 Editions)
and as a Texas Super Lawyer (2006, 2007).
He is admitted in numerous courts including:
the United States District Courts for
the Western and Northern Districts of
Texas, the U.S. Court of Federal Claims,
and the United States Courts of Appeals
for the Fourth, Fifth, D.C., and Federal
Circuits.
Mr. Kern’s law practice is concentrated
in labor and employment law matters
including wage/hour, Title VII, ADEA,
ADA, sexual harassment, workplace safety,
retaliation, and whistleblower cases. He
has worked actively with numerous unions
including AFSCME, El Paso Municipal
Police Officer’s Association, Corpus Christi
Police Officer’s Association, Texas State
Teacher’s Association and the Federation
of Teachers. Mr. Kern is a frequent author
and speaker on labor and employment law
topic s and has spok en at numerous local,
regional, and national seminars and internationally
at seminars in both Canada and
Mexico.
Mr. Kern’s civic service includes:
President of the Board, STARS (El Paso’s
Rape Crisis Center) (1998–2000); President
of the Board, El Paso Tennis Club (2001);
Co-Chair, Border Interfaith (a community
alliance of churches, synagogues and other
community organizations working to foster
positive social, political and economic
change in El Paso) (2003–2006); President
Elect (2007 – ), Vice President
Attachment A:
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