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Patrick M. Madden

Partner
+1.206.370.6795
Fax +1.206.370.6121
Mr. Madden has dedicated the last twenty five years to counseling employers on wage and hour and employment issues and successfully defending employers against wage and hour class actions and other employment lawsuits. Mr. Madden has worked on hundreds of class actions with putative classes ranging up to hundreds of thousands of employees and potential damages at times over a billion dollars. These class actions have involved wage calculation and payment, compensation design, entitlement to overtime and benefits, off-the-clock claims, rest and meal period claims, challenges to exempt status, claims to employee status by independent contractors and gig economy workers, unfair business practices, discrimination, and retaliation.

Advice and Compliance
Mr. Madden serves as employment counsel for international corporations, non-profits, government entities, and local companies. Among other things, he:

  • advises clients on wage and hour, wage payment, employee classification, and other employment issues;
  • drafts and reviews employment agreements and policies on time reporting, scheduling, payroll, compensation, and other employment issues;
  • designs, drafts, and reviews compensation, incentive compensation, bonus, piece rate, and commission plans and policies;
  • conducts friendly audits to identify and correct potential violations that could result in legal liability and provides training to help employers stay in legal compliance; and
  • works with our business and bankruptcy attorneys to address employment issues that arise in the context of purchases, sales, mergers, layoffs, and shutdowns, including challenges with transitioning employees from one company, compensation system, set of operational rules, or classification to another, with the goal of avoiding challenges, litigation, and liability.

Class Action Litigation
Mr. Madden’s class action litigation experience, when combined with his substantive knowledge of wage and hour law, enables him to anticipate issues, identify and raise creative defenses that others may miss, think strategically to avoid or minimize potential problems class actions present, and effectively defend employers against wage and hour and other class action claims. He is special wage and hour counsel for government entities and also consults with other law firms on strategy and tactics. Recent examples of his experience include:

  • Class Certification Denied/Washington Supreme Court Win. Brady v. AutoZone involved wage and meal period claims covering thousands of retail employees. The judge denied class certification (2015 WL 5732550 (W.D. Wash. 9/30/2015)), but certified key legal issues to the Washington Supreme Court (2016 WL 7733094 (W.D. Wash. 9/6/2016)). That Court held that employees have an initial burden of proving they did not receive meal periods, employees may waive meal periods, and waivers need not be in writing. 188 Wn.2d 576 (2017). The judge then reaffirmed his denial of certification in 2018, and the matter was dismissed in 2019.
  • Defense Trial Verdict. Frechin v. King County involved wage and meal period claims for thousands of Metro transit operators. We carved down the claims with summary judgment motions and an interlocutory appeal (194 Wn.App. 1002 (2016)), then had a 6-day trial. In February 2018, the judge entered judgment in our favor, addressing two issues of first impression. First, the court explained what is necessary for a public employer to negotiate rest and meal periods under RCW 49.12.187 and found that Metro satisfied those requirements. Second, the court discussed how to apply the Supreme Court ruling in Brady v. AutoZone and found the plaintiff did not establish a prima facie case of meal period violations.
  • Summary Judgment in Nationwide FLSA Action/Ninth Circuit Win.Douglas v. Xerox Business Services was a nationwide FLSA collective action asserting off-the-clock work claims and challenging the design of our client’s compensation plans, claiming the plans used illegal piece rates and failed to assure that all work activities were compensated by those rates. We narrowed the alleged class from hundreds of thousands to a final opt-in class of 3,367. 2014 WL 3396112 (W.D. Wash. 7/10/2014). The court then granted summary judgment against the named plaintiffs. 2015 WL 10791972 (W.D. Wash. 12/1/2015). The Ninth Circuit affirmed, adopting the employer-friendly test for which we advocated. 875 F.3d 884 (9th Cir. 2017). In 2018, the court dismissed the remaining 3,367 opt-in claims with prejudice.
  • Compensation Litigation Under Washington Law.Hill v. Xerox Business Services involves Washington state claims parallel to the FLSA claims in the Douglas action. The court denied summary judgment, but certified this issue for immediate appeal. The Ninth Circuit then certified the issue to the Washington Supreme Court. 868 F.3d 758 (9th Cir. 2017). That Court issued an opinion finding that our client’s compensation plans were not piece rate plans, but declined to decide whether the plans paid employees on an hourly or some non-hourly basis. 191 Wn.2d 751 (2018). That issue is now pending before the Ninth Circuit.
  • Summary Judgment in California Prevailing Wage Class Action.Busker v. Wabtec Corp. involves class claims for statutory and contractual prevailing wages and California labor code violations. The court granted our motion for summary judgment, dismissing the action. 2017 WL 90369 (C.D. Cal. 1/10/2017). In September 2018, the Ninth Circuit rejected a challenge to removal jurisdiction, affirmed dismissal of the contract claim, and certified the statutory claim to the California Supreme Court, where it is pending. 903 F.3d 881 (9th Cir. 2018).
  • Order Dismissing Class Action:Jama v. Avis Budget Group involved SeaTac Minimum Wage Act claims for hundreds of shuttle drivers who worked for a subcontractor, but who asserted our client was a joint employer. The court certified the class, and then immediately dismissed the case in its entirety based on procedural issues that we set up with strategic decisions at the start of the case. 2017 WL 7053970 (W.D. Wash. 10/27/2017).
  • Order Compelling Individual Arbitration:Pyle v. VXI Global Solutions involved nationwide FLSA collective action and Ohio class action claims for thousands of call center agents for violations of wage and meal period requirements. The court granted our motion to compel individual arbitration and dismissed the lawsuit, accepting our argument that the NLRB’s prohibition of class waivers did not apply because our client’s agreement was merely silent on class arbitration. Case No. 5:17-cv-00220-SL (N.D. Ohio 11/6/2017).
  • Ohio Court of Appeals Arbitration Wins: Shakoor v. VXI Global Solutions involved Ohio class action claims for thousands of call center agents for violations of a variety of state wage requirements. We moved to compel individual arbitration, but the circuit court held that it could not determine whether class arbitration was allowed. On appeal, the appellate court reversed, holding this was a gateway issue. 2015 Ohio 2587, 35 N.E.3d 539 (Ohio App. 2015). The circuit court then ordered individual arbitration and dismissed the case. The Court of Appeals affirmed the circuit court’s interpretation of the agreement, but remanded so the circuit court could consider the NLRB’s and U.S. Supreme Court’s positions on the issue. 2017 Ohio 8018, 2017 WL 4350986 (Ohio App. 9/27/2017). After the U.S. Supreme Court ruled that individual arbitration agreements are legal, plaintiff stipulated to proceed on an individual basis.

Other examples of Mr. Madden’s litigation success include:

  • Edwards v. Lockheed Martin Corp., 954 F.Supp.2d 1141 (E.D. Wash. 2013), aff’d, 617 Fed.Appx. 648, 61 Employee Benefits Cas. 1399 (2015) -- Dismissing contract and unjust enrichment claims on summary judgment based on ERISA preemption.
  • Brennan v. Opus Bank, 2013 WL 2445430 (W.D. Wash. 6/5/2013), aff’d, 796 F.3d 1125 (9th Cir. 2015) -- Dismissing executive’s compensation claims against bank and our client, the CEO, in favor of arbitration.
  • Mejias v. Banco Popular de Puerto Rico, 86 F.Supp.3d 84 (D.P.R. 2015) -- Limiting FLSA notice class to Puerto Rico, and subsequently denying Rule 23 certification.
  • Castillo v. Toll Bros, Inc., 197 Cal. App. 4th 1172 (2011) -- Dismissing class action claims by employees of subcontractors for overtime, breaks, and other violations on summary judgment in a case of first impression interpreting the application of California Labor Code § 2810.
  • Parmar v. Safeway Inc., Case No. 2:10-cv-00241 (W.D. Wash. 2010) -- Dismissing nationwide FLSA and state Rule 23 class claims for overtime by pharmacists on summary judgment and denying plaintiff’s motions for FLSA notice and class certification as moot.
  • Gen. Teamsters Local No. 174 ex rel. Gasca v. Safeway Inc., 2010 WL 1981821 (Wash. App. 2010) -- Dismissing class action claims for overtime and challenging the structure of the company’s activity based compensation system on summary judgment based on the Washington Motor Carrier Act exemption.
  • Sellars v. Safeway Inc., Case No. 0505-04785 (Multnomah Circ. Ct. 8/16/2007), aff’d, Case No. A136854 (Or. App. 7/15/2009), rev. denied (Or. 1/22/2010) -- Dismissing on summary judgment Oregon wage, contract, and unjust enrichment claims in 82-plaintiff collective action.
  • Burk v. Contemporary Home Services, 2007 WL 2220279 (W.D. Wash. 8/1/2007) -- Obtaining order denying FLSA notice and Rule 23 class certification in class action brought on behalf of hundreds of house cleaners.
  • Gieg v. DRR Inc., 407 F.3d 1038 (9th Cir. 2005) -- In three consolidated cases lost by other counsel, obtaining appellate decision reversing and directing judgment as a matter of law in favor of our car dealer client based on the FLSA’s Retail Sales and Service Exemption.
  • Stahl v. Delicor of Puget Sound, Inc., 148 Wn.2d 876 (2003) -- Dismissing class action overtime claims against a retail vending company on summary judgment in a case of first impression applying Washington’s Retail Sales and Service Exemption.
  • Albertson’s Inc. v. NLRB, 301 F.3d 441 (6th Cir. 2002) -- Obtaining Sixth Circuit ruling vacating NLRB determination and holding that limiting storefront access to known charitable organizations is not discrimination against labor organizations.
  • Anheuser Busch, Inc. v. Goewert, 82 Wn.App. 753 (1996) -- Denying unemployment compensation benefits to employee who left employment with our client after accepting a substantial payment under a voluntary early retirement program.
  • Morehouse v. Goodnight Bros. Constr., 77 Wn.App. 568 (1995) -- Affirming Rule 12(b)(6) dismissal of tort claims against construction company whose equipment was stolen and then used in the commission of a crime.

Government Audits and Investigations
Mr. Madden frequently represents employers in federal, state, and local audits and investigations for alleged violations of wage and hour, scheduling, leave, safety, and discrimination requirements as well as alleged failure to pay workers compensation, unemployment, and similar tax amounts. He prepares employers for initial agency visits, represents clients during those visits, helps process and respond to follow-up requests, responds to and negotiates over initial agency determinations, and defends employers against improper determinations and excessive civil money penalties.

For instance, he:

  • Defended a financial institution against DOL claims that it was allowing off-the-clock work nationally, helped isolate the concern, and negotiated a resolution focused on a single recently-acquired operation.
  • Defended a national retirement home business against challenges to the exempt status of certain classifications of employees and convinced DOL that they were properly classified.
  • Defended a national employer in a local agency’s investigation of alleged discrimination against and harassment of Hispanic workers and, after dozens of interviews (often with interpreters) and the submission of detailed workforce data, obtained a no cause finding on both an individual and class level.
  • Assisted a national company with an appeal of a DOL injunction and order of restitution against the client for failing to count certain training time as hours worked and obtained a Sixth Circuit decision reversing the judgment and ordering judgment for the client.
  • Defended a regional retailer against an EEOC investigation of discriminatory hiring practices over a four year period and, after a detailed analysis of hiring information and extensive negotiations, negotiated a class-wide settlement with a minimal payment.
  • Defended a national power company against willful and serious violations under WISHA, and convinced the agency to dismiss the claimed violations in their entirety.

Achievements

  • Awarded the Association of Washington Business’s “Heavy Lifter Award” in 2008 for “going above and beyond the call for the business community.”
  • A Top Employment Attorney in Chambers USA America’s Leading Lawyers for Business, Best Lawyers in America, and Seattle Metropolitan and Seattle Business magazines.
  • A Super Lawyer in Super Lawyers Magazine.
  • A Washington Litigation Star and Western U.S. Employment Star in Benchmark Litigation.

Speaking Engagements

In addition to training programs for clients, Mr. Madden has done hundreds of presentations on wage and hour, employment law, and class action topics at continuing legal education, human resources, and payroll seminars. He has also spoken on wage and hour issues at national and regional business conferences, including the annual meeting of the National Association of Securities Companies, the national Gamer Technology Conference, the Council of School Attorney’s meeting, and the National Council of State Housing Agencies National Conference.

Publications
Mr. Madden has been quoted on wage and hour matters in Washington papers as well as the Wall Street Journal and Corporate Legal Times. Beyond the materials for his hundreds of CLEs and seminars, his formal publications on law-related subjects include:
  • “Platforms Like Uber and the Blurred Line Between Independent Contractors and Employees,” Computer Law Review International, December 2015.
  • “Wage Issues on the Edge: Work Time Claims at the Start and End of the Work Day,” Corporate Counsel Review, May 2011.
  • “Collective Claims: Learning From the U.S. Experience,” PLC Magazine, Jan./Feb. 2008.
  • “Goodbye, Rambo -- Hello, Mr. Rogers?” For the Defense, Dec. 1995.
  • “Don’t Answer That Question,” For the Defense, March 1995.
  • “Federal Labor Law Preemption of State Anti-Takeover Law: A Case of First Impression,” 65 Wash. L. Rev. 457 (1990).

Additional Information

  • Law Clerk, Hon. Joseph F. Weis, Jr., U.S. Court of Appeals for the Third Circuit, 1991-1993

Patrick Madden's practice focuses on labor and employment law matters. He advises employers on various issues, including wage and hour payment and compliance; assists employers responding to agency investigations; and represents employers in wage and hour, discrimination, and other lawsuits at state and federal levels. Patrick has worked on dozens of class actions, including lawsuits involving wage calculation and payment issues, entitlement to overtime and benefits, off-the-clock claims, and challenges to exempt status. Patrick graduated with highest honors from the University of Washington School of Law and clerked for the U.S. Court of Appeals.

Professional Associations and Activities
Patrick has worked with and supported employer associations in legislative, administrative, and judicial forums and is currently the chairperson of the Association of Washington Business (AWB) Employment Law Committee. Working with the Committee, Patrick has helped draft wage and hour legislation, and has helped evaluate and comment upon employment-related legislation and regulations. He has also testified before the Legislature on wage and hour and other employment matters. In addition, Patrick has represented the AWB and the Washington Retail Association (WRA) as amicus curiae in various wage and hour and employment matters before Washington's Court of Appeals and Supreme Court. Patrick's professional memberships include:

  • Employment Law Sections of the American, Washington, and Seattle-King County Bar Associations
  • AWB Employment Law Committee - Chairperson (2002-2004)
  • AWB/WRA Wage and Hour Task Force

Wage and Hour Advice and Compliance
Patrick regularly advises employers on wage and hour and wage payment issues, as well as many other employment matters. He reviews and helps clients draft policies, including policies relating to time reporting, payroll, compensation, and classification issues. He also assists clients by conducting friendly audits to identify and correct potential violations that could result in legal liability. In addition, Patrick often works with clients and our business and bankruptcy attorneys to address wage and compensation issues that arise in the context of purchases, sales, mergers, layoffs, and shutdowns. A few examples of Patrick's advice practice are:

  • Patrick has reviewed and helped draft compensation, incentive compensation, and commission policies for international, national, regional, and local companies, especially those focused in the retail, technology, and sales contexts.
  • Patrick regularly advises national, regional, and local companies on issues relating to hours worked, calculation of the regular rate, and other issues relating to the calculation of overtime for hourly and salaried non-exempt workers.
  • Patrick regularly advises national, regional, and local companies on the proper classification of exempt workers, including issues involving the salary basis and duties requirements.
  • Patrick regularly advises national, regional, and local companies on wage payment matters, including wage withholding, termination pay, and severance pay issues.
  • Patrick has advised international, national, regional, and local companies on transitioning employees from one company, compensation system, set of operational rules, or classification to another, with the goal of avoiding challenges, litigation, and liability.

Government Wage and Hour Audits and Investigations
Patrick frequently counsels and represents employers in wage and hour audits and investigations by the United States Department of Labor (DOL) and the Washington Department of Labor and Industries (DLI). He prepares employers for initial agency visits, represents clients during those visits, helps process and respond to follow-up requests, responds to and negotiates over initial agency determinations, and defends employers against improper determinations and excessive civil money penalties. For instance:

  • In 2002, Patrick assisted a national company with an appeal of an injunction and order of restitution against the client for failing to count certain training time as hours worked. The U.S. Court of Appeals for the Sixth Circuit reversed the judgment and ordered judgment for the client.
  • In 2001, Patrick handled an audit of a temporary work agency by the DOL. Although the investigator found that, among other problems, the regular rate was being improperly calculated, Patrick demonstrated that any impact was de minimus. The investigator thus issued a report with no violations and no penalties.
  • In 2001, Patrick handled an audit of a major Northwest employer with thousands of employees. After an extensive audit, the DOL investigator found no violations involving non-exempt employees and only minor exempt classification and child labor violations. Damages for these violations were further reduced through negotiations and the use of supplemental information.
  • In 2000, Patrick was brought in to assist the regional office of a national company where the DOL investigator had initially determined that the company had improper work time, regular rate, and wage credit policies and practices for their non-exempt employees. After a further exchange of extensive information, the investigator agreed that certain company policies were acceptable. Back wage payments for other violations were further negotiated and minimized.

Wage and Hour Litigation
Patrick has extensive experience defending employers against wage and hour and wage payment claims. In addition to representing employers in wage lawsuits brought by individual employees, Patrick has worked on dozens of wage and hour class actions. Patrick has also been hired to consult with other law firms as to their management and tactics in wage and hour class actions. A few examples of Patrick's litigation experience are:

  • Patrick is lead counsel defending a nationwide retailer against claims for off-the-clock work, meal period, and expense reimbursement violations under state and federal law.
  • Patrick is lead counsel representing a multi-state vending company against class allegations that the company failed to pay overtime compensation to potentially hundreds of route drivers. After minimal discovery, we obtained summary judgment in a decision of first impression interpreting the Retail and Service Exemption adopted in Washington in 1997. In March 2003, the Washington Supreme Court issued a 9-0 decision affirming the judgment in favor of our client.
  • Patrick was one of the lead counsel representing a major municipality against claims that workers from temporary employment agencies were common law employees and entitled to additional compensation and benefits. After extensive litigation, the matter settled on favorable terms just prior to trial. We are now representing the municipality on the multitude of issues that arise in the administration of a complex settlement.
  • Patrick represented a nationwide client against class allegations that thousands of management level employees were denied bonus payments and were subject to other wage payment and wage withholding violations. After obtaining an order dismissing the class claims, the individual claim was settled on favorable terms.
  • Patrick helped represent and coordinate the defense in Washington State of a nationwide retailer that was faced with a series of union-sponsored class actions involving claims that its employees were not paid for all time that they worked. After extensive discovery, the matter was settled on a nationwide level.
  • Patrick was one of the lead counsel representing the Alaska subsidiary of a nationwide client in the oil and gas industry against claims that the company's white collar workers were not paid on a salary basis and were improperly classified as exempt. After class certification was denied and the class claims were dismissed on summary judgment, the individual claims were settled on favorable terms.
  • Patrick was one of the lead counsel representing a multi-state retailer against class claims that the company failed to pay overtime and did not pay for all hours worked. After the employer filed an extensive motion for summary judgment covering two different compensation systems, the plaintiffs agreed to settle the matter on favorable terms.

Presentations
In addition to counseling and training sessions with individual clients, Patrick regularly speaks on wage and hour and other employment law topics at continuing legal education, human resources, and payroll seminars. In 2000, Patrick was invited by the Washington State Bar Association to take part in its Best of 2000 program based on the superior evaluations he received in an earlier legal education program. Over the past five years, Patrick's presentations have included:

  • "The 5 Ws of Workplace Training" in Training Your Workforce: Do's and Don'ts (Oct. 9 and Dec. 11, 2002).
  • "Wage & Hour and Compensation Law Update" in Employment Law Briefing 2002 (Nov. 15, 2002).
  • "Overview of Federal Wage and Hour Laws," "Overview of Washington Wage Statutes," "Recent Developments in Wage and Hour Law," and "Litigation of Wage and Hour Claims" in Washington Wage and Hour Update (Nov. 9, 1999; Nov. 16, 2000; Nov. 6, 2001; and Nov. 7, 2002).
  • "Wage and Hour Issues" and "Employer Leave Policies" in Time Off in Washington: State and Federal Laws on Employee Leave, Vacations and Holidays (Oct. 17, 2000; May 2 and Oct. 11, 2001; and May 21 and Oct. 8, 2002).
  • "Wage and Hour Claims," in 5th Annual Labor & Employment Law Conference (Aug. 23, 2002).
  • "Modifying Policies in Light of DLI's New Wage and Hour Guidelines" in Workplace Policies: Avoiding Common Traps and Addressing New Requirements (June 5, 2002).
  • "Wage Requirements for Non-Exempt Employees," "Requirements for Exempt Employees," "Managing Leave Rights," and "Proper Maintenance of Records" in Payroll Management in Washington (April 12, 2002).
  • "Key Wage and Hour Issues, Including Exemptions, Wage Payment, and the Contingent Workforce" in Employment Law Briefing 2001 (Oct. 12, 2001).
  • "Appropriate Procedures for Dealing with Employees" in How to Advise the Business in Distress (July 26 and Aug. 3, 2001).
  • "Recognizing When Your Client Has A Wage and Hour Problem" in the Lunchtime Lecture Series (June 1, 2001).
  • "When Are Executives and Managers Personally Liable for Employee Compensation?", "Are You Fully Paying Non-Exempt Employees?", "What Cost-Effective Alternatives Exist for Compensating Employees?", and "How Can You Avoid the Inadvertent Loss of Exempt Status" in Avoiding Hidden Landmines and Personal Liability: Critical Issues in Employee Compensation (March 6 and May 8, 2001).
  • "Avoiding Misclassification of Employees Under the Fair Labor Standards Act and Washington Law" in the Washington State Bar Association's Best of CLE 2000 (Dec. 8, 2000).
  • "Managing Employees Who File Complaints" in Handling HR Nightmares: Practical Advice for Addressing Difficult Workplace Problems (Oct. 24, 2000).
  • "Call Them Like They Are, Not Like You Want Them To Be: Avoiding Misclassification of Employees" in the Seven Deadly Sins of Washington Employers (July 28, 2000).
  • "Preparing for an Investigation," "Deciding the Facts," and "Top 10 Dos and Don'ts in an Investigation" in Employee Investigations: A Practical Guide for Washington Employers (June 16, 2000).
  • "Avoiding Hidden Legal Landmines In Your Workplace Investigations" and "Compiling Essential Documentation And Gathering Key Evidence To Support - Not Undermine - Your Investigation" in How to Conduct an Internal Investigation (Aug. 30, 1999).
  • "State Update: Ensuring That You Comply With State Wage and Hour Laws" in Wage and Hour/Payroll Compliance Workshop (April 8, 1999).
  • "Recruiting and Retaining Skilled Employees in a Highly Competitive Job Market" in Personnel Law Update 1998 (Nov. 17, 1998).
  • "FLSA Alert: How to Avoid Backpay Liability, Loss of Employee Exemptions and Other Startling New Wage and Hour Repercussions" in Personnel Law Update 1998 (Jan. 14 and May 28, 1998).
  • "Wage and Hour Law Update and Practice Pointers" in the Washington State Bar Association's 1998 Corporate Counsel Institute (March 6, 1998).

Publications 
Patrick regularly has been quoted on wage and hour matters in Washington papers as well as the Wall Street Journal. His other formal publications on law-related subjects include:

  • Contributing Author, Defense Practice Notebook (DRI 1996).
  • "Goodbye, Rambo -- Hello, Mr. Rogers?" For the Defense, Dec. 1995, at 8-14.
  • "Don't Answer That Question," For the Defense, March 1995, at 12-17.
  • "Federal Labor Law Preemption of State Anti-Takeover Law: A Case of First Impression," 65 Wash. L. Rev. 457 (1990).