My mother always warned me about the dangers of following the crowd:

“If all your friends jumped off a cliff,” she’d ask, “would you follow them? Don’t be a lemming!”

Lemmings, it turns out, don’t really commit mass suicide by hurling themselves en masse off cliffs, but I got the point. Doing things the same way as everyone else isn’t always a good idea, and it may create legal problems.

Eight years ago, a number of backstretch workers in New York sued prominent Thoroughbred trainer Nick Zito and the Nicholas Zito Racing Stable, Inc. They claimed that they usually worked more than 40 hours a week as grooms, hot walkers, and exercise riders, but were not paid overtime for the extra work. This practice, they said, violated both the federal Fair Labor Standards Act (FLSA) and New York state law.

A federal judge later expanded the lawsuit to include the original plaintiffs and “all individuals including past and present employees of Nicholas Zito Racing Stables who worked as watchmen, grooms, hot walkers, and in other occupations related to the horse racing industry within the state of New York from 1999 through the present.”

That’s a lot of people, and some serious money is at stake if the backstretch employees win.

Everyone Does It That Way

The case bounced around federal court in the Eastern District of New York for several years. Then a few months ago, something actually happened. Magistrate Judge Kathleen Tomlinson ruled on cross-motions for partial summary judgment, both sides arguing that there was no need for a trial on at