Kenneth DiGia – Employment Attorney – New York, New York

Attorney Ken DiGia leverages more than 30 years of legal experience to advise a broad range of clients on various employment law issues. Clients value his responsiveness and attention to detail. Always working to help clients avoid litigation, Ken designs and reviews personnel policies, manuals, and handbooks.

He also provides advice to clients on planning for reductions in force, conducting internal investigations, and drafting separation agreements. Additionally, Ken represents employers in the defense of putative collective actions under the Fair Labor Standards Act (FLSA), and class actions under New York State Labor Law involving the misclassification of employees, compensation for hours worked, and salary basis issues in cases with potential classes of more than 50,000 employees. The claims of misclassification have included executive, administrative, outside sales, and companionship exemptions.

Ken has been involved in a number of cases that have been published, including:

United States ex rel. Rattan v. Episcopal Health Serv., No. 11-cv-6259 (ADS), 2015 U.S. Dist. LEXIS 174197 (E.D.N.Y. July 13, 2015) (the district court granted defendants’ motion for summary judgment dismissing plaintiff’s False Claims Act and Title VII claims).
Myers v. The Hertz Corp., 624 F. 3d 537 (2d Cir. 2010) (affirming district court’s denial of class certification)
Anderson v. The Hertz Corp., 303 Fed. Appx. 946 (2d Cir. 2008) (affirming the district court’s grant of summary judgment in claim of race discrimination).
Ward v. The Bank of N.Y., 455 F. Supp. 2d 262 (S.D.N.Y. 2006) (granting the motion to dismiss for lack of subject matter jurisdiction based on rejection of an offer of judgment).

Focus Areas

Experience

Defeated two requests for nationwide collective action certification where the employee claimed that she and all putative collective action members were misclassified under the executive exemption because they routinely engaged in non-exempt duties. Ken also defeated a request for Rule 23 class certification. The U.S. Court of Appeals for the Second Circuit affirmed the denial of Rule 23 class certification.
Obtained dismissal of class and collective action claims under the FLSA and New York Labor Law following an Offer of Judgment that plaintiff rejected. After plaintiff rejected the offer, the court dismissed the action for lack of subject matter jurisdiction, holding that the offer provided the plaintiff with full relief.
Resolved claims under the New York Wage Theft Prevention Act, tip credit, spread of hours, uniform pay, and meal deductions.
Obtained dismissal of overtime claims at the pleading stage, later upheld by the U.S. Court of Appeals for the Second Circuit for failure to properly plead claims under the FLSA. This Second Circuit decision was one of three decisions outlining the standards for pleading FLSA claims in the Second Circuit.
Achieved a nominal settlement that included withdrawal of class allegations of claims brought under New York Labor Law § 196-d alleging that the employer failed to comply with tip-related requirements for private dining functions.
Persuaded the plaintiffs to withdraw without any monetary payment collective action claims premised on the allegation that a night shift differential was not properly included in the overtime rate of pay.

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