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 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, detention 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 has been a driver of the Mortgage Loan Officer initiative on behalf of Seyfarth Shaw’s Wage and Hour Litigation Practice Group.  He has litigated the exempt status of the position around the country and developed programs for compliance with regulatory requirements bearing on compensation, registration, and training of mortgage loan officers.  He has also been quoted in media sources as an expert on the compensation of mortgage loan officers. 

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 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, detention 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 has been a driver of the Mortgage Loan Officer initiative on behalf of Seyfarth Shaw’s Wage and Hour Litigation Practice Group.  He has litigated the exempt status of the position around the country and developed programs for compliance with regulatory requirements bearing on compensation, registration, and training of mortgage loan officers.  He has also been quoted in media sources as an expert on the compensation of mortgage loan officers. 

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 Cases

  • Levi v. Gulliver’s Tavern, Inc. d/b/a The Foxy Lady, et al., 2016 WL 552469 (D. R.I) (granting motion to dismiss wage claims against individual defendants under FLSA and Rhode Island law based on alleged misclassification of exotic dancers as independent contractors and tip credit claim under FLSA)
  • Gavin, et al. v. NVR, Inc., 604 Fed.Appx. 87, 2015 WL 3387885 (2d Cir.) (rejecting challenges to jury verdict in favor of employer finding that new home sales employee was properly classified as exempt outside salesman)
  • Clermont v. Monster Worldwide, Inc.,2015 WL 1609838 (D. Mass.) (holding that employee cannot collect statutory multiple damages under Massachusetts Wage Act where employer paid all sums alleged to be due before employee filed suit)
  • Garcia v. E.J. Amusements of N.H., Inc., 89 F. Supp. 3d 211 (D. Mass.) (denying lobbying group’s motion for protective order to avoid subpoena served by employer seeking information pertaining to lobbying group’s publication of industry report on working conditions in carnival industry)
  • Hammons v. NVR, Inc., 2015 WL 1129834 (D. Md.)(partial summary judgment for employer on claims for commissions under Maryland  Payment of Wages Act, including judgment in favor of employer on counterclaims against employee to recover advanced commissions)
  • Reyes, et al. v. S.J. Services, Inc., et al., 2014 WL 5485943 (D. Mass.) (summary judgment for employer finding Massachusetts Wage Act claim preempted by Labor Management Relations Act and claim for health insurance benefits preempted by ERISA)
  • Nereim v. Premara Financial, Inc. d/b/a Carolina Premier Bank, 2014 WL 2882692 (W.D.N.C.) (compelling claims of lead plaintiff in putative FLSA collective action to individual arbitration)
  • Anderson, et al. v. NVR, Inc., 300 F.R.D. 116 (W.D.N.Y.) (severing claims of plaintiffs who attempted to bring multi-plaintiff action after decertification of FLSA collective overtime action into individual cases, ordering that such individuals could not proceed collectively)
  • Cougill v. Prospect Mortgage, LLC, (E.D. Va.), Docket no. 13-cv-1433 (JCC/TRJ) (jury trial of FLSA case regarding application of outside sales exemption to mortgage loan officer; complete defense verdict).
  • Hantz v. Prospect Mortgage, LLC, 11 F. Supp. 3d 612 (E.D. Va.) (summary judgment in favor of employer dismissing plaintiff’s claim that employer “willfully” violated FLSA for statute of limitations purposes, in addition to finding that loan officer was properly subject to outside sales exemption)
  • Dixon v. Prospect Mortgage, LLC, 11 F. Supp. 2d 605 (E.D. Va.) (summary judgment finding mortgage loan officer subject to FLSA’s outside sales exemption)
  • Hartman v. Prospect Mortgage, LLC, 11 F. Supp. 3d 597, 2014 WL 55339 (E.D. Va.) (summary judgment finding mortgage loan officer subject to FLSA’s outside sales exemption)
  • Monk, et al., v. Elite Limousine Service, Inc.(D. Conn), Docket no. 13-01880-SRU (defense of overtime pay claims brought on behalf of chauffeurs under FLSA and Connecticut law).
  • Tracy v. NVR, Inc. (W.D.N.Y.), Docket no. 04-06541-DGL(P) (jury trial of FLSA case regarding application of outside sales exemption to Sales and Marketing Representative for home builder; complete defense verdict).
  • Erraihani, et al. v. Executive Transportation Service, Inc.,Massachusetts Superior Court for Norfolk County, Civil Action No. 2013-01003 (secured walkaway settlement of class action minimum wage and overtime claims under Massachusetts law brought by chauffeurs).
  • Garcia, et al. v. E.J. Amusements, Inc. d/b/a Fiesta Shows (D. Mass), Docket no. 13-12536-PBS (defense of off-the-clock work claims and claims regarding failure to reimburse immigration related expenses under Massachusetts and New Hampshire law brought by ride operators in traveling carnival).
  • Hynes v. Booma Oil, Inc. (D. Mass.), Docket no. 12-10856-DPW (defense of independent contractor misclassification claim based on FLSA and Massachusetts law brought by oil burner technician).
  • Jeffcote v. Morton Hospital & Steward Health Care System LLC, Massachusetts Superior Court for Bristol County, Civil Action No. 2012-00937 (dismissal of claim by senior executive under Massachusetts Wage Act seeking severance compensation).
  • Pruell, et al. v. Caritas Christi, et al., 2013 WL 5647398 (D. Mass.), Docket No. 09-cv-11466, entry 141 (striking plaintiff’s FLSA collective action claim from case and entering monetary sanctions against plaintiff’s counsel for filing false affirmations in support of motion to certify collective action). 
  • Pruell, et al. v. Caritas Christi, et al., 2013 WL 2420918 (D. Mass.) (dismissing FLSA collective action claims against multitude of institutional and individual defendants as failing to meet applicable pleading standards). 
  • Tracy, et al. v. NVR, Inc., 293 F.R.D 395 (W.D.N.Y) (decertifying multi-state collective action asserting FLSA overtime claims on behalf of Sales and Marketing Representatives, denying plaintiffs’ motion for class certification of overtime claims under New York state law and dismissing opt-in plaintiffs from case) .
  • Cramer, et al. v. Bank of America, N.A., et al.(N.D. Illinois), Docket No. 12-cv-08681 (defense of putative nationwide collective action and putative class action under Illinois law asserting minimum wage and overtime claims on behalf of Sales Managers and other mortgage origination employees).
  • Benjamin, et al. v. Jolo, Inc., et al.(D. Mass.), Docket No. 12-cv-40071 (defense of multiple entities in complex wage/hour class action under FLSA and Massachusetts law challenging classification of exotic dancers as independent contractors).
  • Tracy, et al. v. NVR, Inc.2012 WL 1067889 (W.D.N.Y) (denying plaintiffs’ motion to compel production of defendant’s litigation hold instructions and granting employer’s motion for sanctions against plaintiff who destroyed and altered documents) .
  • U.S. Dep’t of Labor v. Mardi Gras Entertainment, Inc., et al. (D. Mass.), Docket No. 11-cv-30024 (defense of employer in DOL enforcement action alleging failure to pay bartenders at appropriate minimum wage).
  • Rosnov v. Molloy, 460 Mass. 474, Massachusetts Supreme Judicial Court (holding that Massachusetts statute providing for mandatory treble damages for violations of wage laws not to be applied retroactively).
  • Wilkins, et al. v. Bank of America, N.A., et al. (N.D. Illinois), Docket No. 11-cv-00962 (defense of putative nationwide collective action asserting minimum wage and overtime claims on behalf of mortgage loan officers under federal law, in addition to class action claims under Illinois law).
  • Kelly, et al. v. Bank of America, N.A., et al. (N.D. Illinois), Docket No. 11-cv-05332  (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).
  • Ruiz, et al. v. Mardi Gras Entertainment, Inc., et al., Massachusetts Superior Court for Hampden County, Civil Action No. 10-00034 (defense of multiple entities in complex wage/hour class action challenging classification of exotic dancers as independent contractors under Massachusetts law).
  • Walsh, et al. v. The Foxy Lady, et al., Massachusetts Superior Court for Plymouth County, Civil Action No. 2010-01616 (defense of club in wage/hour class action challenging classification of exotic dancers as independent contractors).
  • Tracy, et al. v. NVR, Inc., 737 F. Supp. 2d 129 (W.D.N.Y) (denying motion by plaintiffs’ counsel for award of interest allegedly accruing from delayed payment of attorneys’ fees in conjunction with class action settlement).
  • Pruell, et al. v. Caritas Christi, et al., 2010 WL 3789283 (D. Mass.) (dismissing class action wage hour claims under FLSA, ERISA and RICO for failure to meet Twombly pleading standard), aff’d with instructions on leave to replead 678 F.3d 10 (1st Cir. 2012).
  • Tracy, et al. v. NVR, Inc., 667 F. Supp. 2d. 244 (W.D.N.Y.) (denying plaintiffs’ motion to amend complaint to add individual corporate officers as defendants under FLSA and New York Labor Law on grounds that claims were subject to dismissal under revised federal pleading standard).
  • In re Stevenson,399 B.R. 289 (1st Cir. BAP) (affirming award of monetary sanctions against plaintiff for filing of frivolous claims against alleged former employer, including claims of retaliation arising from FLSA claims).
  • Tracy, et al. v. NVR, Inc., 599 F. Supp. 2d 359 (W.D.N.Y.) (denying plaintiff’s motion for summary judgment on FLSA overtime pay claim and holding that U.S. Department of Labor opinion letters favorable to employer are applicable and entitled to judicial deference).
  • Tracy, et al. v. NVR, Inc., 250 F.R.D. 130 (W.D.N.Y.) (denying plaintiffs’ motion to compel interrogatory responses pertaining to steps defendant’s counsel took in responding to document requests).
  • O'Donnell, et al. v. Robert Half Int’l Inc., 641 F. Supp. 2d 84 (D. Mass. 2009), aff’d (D. Mass. Jan. 7, 2010) (disqualifying plaintiffs’ counsel on conflict of interest grounds).
  • O’Donnell, et al. v. Robert Half Int’l Inc., 250 F.R.D. 77 (D. Mass. 2008), petition for interlocutory review denied (1st Cir. July 14, 2008) (“O’Donnell IV”) (denying plaintiffs’ motion for certification of a class under Massachusetts overtime pay law).
  • O’Donnell, et al. v. Robert Half Int’l Inc., 534 F. Supp. 2d 173 (D. Mass.) (“O’Donnell III”) (denying plaintiffs’ motion for summary judgment and motion for collective action certification regarding FLSA overtime claims asserted on salary basis theory).
  • O’Donnell, et al. v. Robert Half Int’l Inc., 429 F. Supp. 2d 246 (D. Mass.) (“O’Donnell I”) (denying plaintiffs’ motion to certify FLSA overtime claims as collective action).
  • Trezvant, et al. v. Fidelity Employer Services Co., et al., 434 F. Supp. 2d 40 (D. Mass.) (dismissing employees’ class action overtime claims under New Hampshire law in case of first impression, and narrowing nationwide FLSA collective action overtime claim to one facility).
  • Caliguri v. Eastern Bank, U.S.D.C. for Massachusetts, Docket No. 06-cv-11226 (granting summary judgment to employer on sizable severance pay claim under ERISA-governed severance plan).
  • NaviSite v. Cloonan, 2005 WL 1528903 (Mass. Super.) (first Massachusetts case to apply “fraud in factum” doctrine in employment context, invalidating severance agreement surreptitiously altered by employee).

Representative Other Cases

  • NVR, Inc. v. Davern, 2015 WL 9450831 (D. N.J.) (entering injunction under New Jersey Trade Secrets Act against former management employee based on misappropriation of confidential information)
  • Goldberg v. Uber Technologies, Inc. & Hirease, LLC, 2015 WL 1530875 (D. Mass.) (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)
  • Wennemer v. New England Sinai Hosp. & Rehab. Ctr., Massachusetts Superior Court for Norfolk County, Civil Action No. 2013-00453 (secured walkaway settlement from physician asserting wrongful termination claims on various tort theories).
  • Saba v. Eastern Bank f/k/a MASSBANK, U.S.D.C. for Massachusetts, Docket No. 10-cv-11748-GAO (dismissal of national origin discrimination claims for failure to adequately state cause of action); aff’d 1st Cir. April 9, 2013.
  • Wheeler v. Eastern Bank, et al.,Massachusetts Superior Court for Suffolk County, Civil Action No. 2009-00095 (granting summary judgment to employer on all claims brought by employee who alleged sex discrimination in employer’s decision not to include plaintiff in layoff and severance program).
  • Petani v. The TJX Cos., et al., Massachusetts Superior Court for Worcester County, Civil Action No. 2005-00046 (granting summary judgment to employer on all claims brought by employee terminated for theft, including age discrimination, handicap discrimination, false imprisonment, and negligent hiring and supervision).
  • LeClair v. Eastern Bank, et al., Massachusetts Superior Court for Norfolk County, Civil Action No. 2006-00328 (dismissing employee’s claim that employer had terminated him for consulting with his attorney regarding his legal rights), affirmed Massachusetts Appeals Court docket no. 2008-P-0218.

Presentations

  • "Massachusetts' New Pay Equity Law: Breaking Down the Most Stringent Pay Equity Law in the Country," Webinar, presented by Seyfarth Shaw LLP (August 10, 2016)
  • "On Equal Pay Day - What Employers Need to Know," Webinar, presented by Seyfarth Shaw LLP (April 12, 2016)
  • “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