People: Barry J. Miller, Partner

Barry J. Miller

Partner

Boston
Direct: (617) 946-4806
Fax: (617) 946-4801

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Biography

Mr. Miller is a partner in the Labor & Employment Department of Seyfarth Shaw LLP. He regularly litigates employment disputes in state and federal courts and before administrative agencies. Mr. Miller also regularly provides counseling and compliance advice to employers on a wide variety of employment-related legal issues, including the 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 employers’ 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 contributes to Seyfarth Shaw’s Wage & Hour Litigation blog and is a driver of the Mortgage Loan Officer initiative on behalf of Seyfarth Shaw’s Wage and Hour Litigation Practice Group. In that capacity, he has developed considerable expertise with a variety of issues pertaining to the compensation and management of mortgage loan officers. He has litigated the exempt status of the position, provided counsel to numerous lenders regarding alternative compensation schemes for loan officers and related employees, and developed policies and 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, Massachusetts’ Chapter 151B, and other 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 also has 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 the Massachusetts Super Lawyers Guide and has been recognized in Chambers USA as being at the forefront of his generation for the practice of employment law.

Education

J.D., Georgetown University Law Center (2004)
cum laude
Editor, Georgetown Law Journal
A.M., Brown University (1998)
A.B., Brown University (1998)
magna cum laude

Courts

U.S. Court of Appeals for the First 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 Massachusetts

Representative Engagements

Representative Wage & Hour Cases

Rosnov v. Molloy, __ Mass. __ 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., U.S.D.C for 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., U.S.D.C for 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, Docket No. 10-00034 (defense of multiple entities in complex wage/hour class action challenging classification of exotic dancers as independent contractors)
Walsh, et al. v. The Foxy Lady, et al., Massachusetts Superior Court for Plymouth County, Docket No. 2010-01616 (defense of club in wage/hour class action challenging classification of exotic dancers as independent contractors)
Pruell, et al. v. Caritas Christi, et al., 2010 WL 3789318 (D. Mass.) (dismissing class action wage hour claims under Massachusetts law as preempted by federal labor law)
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)
Tracy, et al. v. NVR, Inc., 677 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 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’ state 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

Wheeler v. Eastern Bank, et al., Massachusetts Superior Court for Suffolk County, Civil Action No. 2009-00095, (July 27, 2010) (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, (August 18, 2006) (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, (August 9, 2006) (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 (March 4, 2009)

Presentations

"Independent Contractor vs. Employee," MCLE Program (November 2010)
"Hourly Workers: Employee Rights, Employer Obligations," MCLE Program (June 2008)

Publications

Member, Board of Editors, Wage & Hour Collective and Class Litigation, ALM Law Journal Press (2012). Definitive treatise on wage and hour litigation.
Chapter Author, “Chapter 4 - Defending FLSA Collective Actions - The Motion for Conditional Certifications,” Wage & Hour Collective and Class Litigation, ALM Law Journal Press (2012). Definitive treatise on wage and hour litigation.
“Employers must Grapple with a Narrowed Interpretation of the Administrative Exemption to Federal Overtime Pay Requirements,” HR Magazine (December 2010)
“Department of Labor Reversal Requires Creative Approach to Compensation for Mortgage Loan Officers,” National Mortgage Professional Magazine (June 2010)
Co-author, “Settlement Strategies in Class, Collective or Pattern and Practice Cases,” included in program materials for mid-winter meeting of ABA Section of Labor & Employment Law (2005)
Co-author, “Stonehill College: Proof Of Emotional Distress Did Not Stay The Same,” Massachusetts Lawyers Weekly (October 11, 2004)