New York Wage and Employment Lawyer Update: Great New SDNY Decision Addressing FLSA “Good Faith” and Attorney-Client Privilege

I just read a terrific decision by SDNY Magistrate Judge Sarah Netburn in an overtime rights lawsuit entitled Scott v. Chipotle Mexican Grill, Inc., 1:12-cv-08333-ALC-SN. The decision was issued on December 18 and can be fond at the following link:,33&as_vis=1.

In the decision, the judge provides a great general explanation of 29 U.S.C. 259’s “good faith” defense to liability and 29 U.S.C. 260’s “good faith” defense to liquidated damages. The Judge explains that both defenses are difficult for companies to prove and that liquidated damages considered “the norm” in FLSA lawsuits.

Next, the judge explains that companies invoking a “goof faith” defense cannot simultaneously rely on the attorney-client privilege to protect from disclosure otherwise privileged communications between the company and its lawyers regarding the corporate decision-making challenged in the lawsuit. What’s more, the attorney-client privilege is waived even if the company says it will not “rely on” the advise of counsel in asserting the defense.

New York wage and overtime attorneys, as well as employment lawyers in neighboring Pennsylvania and New Jersey and elsewhere should be aware of this helpful decision.

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