Tel: (313) 496-1200
Fax: (313) 496-1300
FLSA Collective Actions
Labor and Employment Law
Mergers and Acquisitions
B.A., Kalamazoo College, 1985
J.D., cum laude, Detroit College of Law, 1989
Member, Detroit College of Law Review
State Bar of Michigan
U.S. Court of Appeals, Sixth Circuit
U.S. District Court, Eastern District of Michigan
U.S. District Court, Western District of Michigan
David Foy has nearly 30 years experience representing private, nonprofit and municipal employers in all areas of employment law. Mr. Foy is responsive to client needs and achieves positive results through his knowledge of employment law and his understanding of his clients’ objectives. He has successfully defended employers against claims asserting breach of contract, wrongful discharge, discrimination (age, disability, gender, national origin, race and religious discrimination), sexual harassment, and wage and hour and whistleblower violations.
Mr. Foy represents employers before federal and state courts and administrative agencies and arbitration tribunals such as the Equal Employment Opportunity Commission, Michigan Department of Civil Rights, U.S. Department of Labor, Michigan Wage and Hour Division, and National Labor Relations Board. He also represents employers in matters involving non-competition/non-solicitation disputes and misappropriation of trade secrets.
In labor matters, Mr. Foy represents private and public sector employers in collective bargaining negotiations, arbitrations, grievance resolution and defending unfair labor practices.
Mr. Foy assists clients with drafting employment agreements, employee handbooks, policies and procedures and confidentiality and non-competition/non-solicitation agreements. He also assists clients in developing systems to protect intellectual property and counsels clients regarding best employment practices, litigation avoidance, family and medical leave, reductions in force, and the classification of salaried employees who are exempt from the Fair Labor Standards Act overtime and minimum wage provisions. He also assists clients in employing strategies to prevent or defend FLSA claims, including FLSA collective actions, dual-filed class actions and Department of Labor audits regarding employers’ alleged failure to pay overtime or the minimum wage. Mr. Foy successfully defeated efforts to certify a FLSA collective action class of several hundred workers.
Mr. Foy is a member of the American Bar Association’s Section of Labor and Employment Law and its Equal Employment Committee. He is also a member of the State Bar of Michigan’s Labor and Employment Law Section. Mr. Foy frequently speaks to businesses and professional groups throughout the State of Michigan and has served as faculty to the Council on Education in Management, Lorman Education Services and National Business Institute.
Prior to joining Berry Moorman, Mr. Foy represented municipalities, municipal boards and public agencies throughout Michigan. He assisted public bodies with drafting ordinances and code enforcement and he has provided numerous legal opinions concerning the Freedom of Information Act and the Open Meetings Act. He continues to represent municipalities and also represents a number of nonprofit organizations. He is a contributing author of the Michigan Nonprofit Management Manual, 5th edition.
In 2009, Mr. Foy represented a publicly-traded global energy company with its $20 million acquisition of a Michigan company. In 2010, he represented a global automotive market forecasting company in the sale of its stock for $27 million to a publicly-traded company, which is a leading global source of critical information and insight.
Recognized by dbusiness magazine as a Top Lawyer in Health Care Law, Mr. Foy also works with medical and dental practices. He helps physicians and dentists form professional limited liability companies and corporations, draft and negotiate buy-sell and employment agreements, and perform due diligence when joining or buying a medical or dental practice.
Mr. Foy studied in Munster, Germany and is proficient in German.
Reported and Notable Decisions:
Guerrero v. Brickman Group, LLC
Plaintiffs brought a dual-filed FLSA collective action seeking to certify a class of several hundred workers, along with state law claims. The court denied Plaintiffs’ motion for FLSA certification, finding that the employees were not similarly-situated. The court reasoned that the employees had not even submitted a modest showing of evidence to be certified as a class. Further, the court did not believe it was appropriate to exercise supplemental jurisdiction over the state law claims where the state law issues predominated over the remaining federal claims. The high ratio of state to federal claimants weighed against the court exercising supplemental jurisdiction over the state law claims. The court also concluded that no aspect of federal immigration law was an indispensable component of any state law claim.
Smith v. Fitzsimons Manufacturing Co.
U.S. District Court granted Defendant summary judgment on Plaintiff’s hybrid 301 action, finding Federal law preempted Plaintiff’s state law breach of contract claim because it arose out of the employment relationship covered by a collective bargaining agreement. Regarding Plaintiff’s wrongful discharge claim, Plaintiff failed to allege that the third-party Defendant union breached its duty of fair representation.
E.E.O.C. v. Allendale Nursing Centre
U.S. District Court granted Defendant summary judgment on Plaintiff’s claim of religious discrimination based on the employee’s discharge for her refusal to obtain a social security number allegedly for religious reasons. The court awarded Defendant costs against the EEOC.
First American Title Ins. Co. v. Sabaugh
U.S. District Court upheld County Register of Deeds’ practice of charging fees for title records.
Tuscola County Abstract Co., Inc. v. Tuscola County Register of Deeds
Michigan Court of Appeals maintained County Register of Deeds’ statutory right to charge for copies of records.