Total Articles: 10
Class Action eAuthority (June 2011)
In 2008, 5,302 suits were filed under the Fair Labor Standards Act (FLSA) in the nation’s federal courts. Statistics Div., Admin. Office of the U.S. Courts, Federal Judicial Caseload Statistics. By 2010, that number had jumped to 6,081. One source of the uptick appears to be the flood of “hybrid” actions, in which plaintiffs assert violations of state wage and hour laws, styled as purported Rule 23 class actions, and FLSA claims, which must be brought as a collective action.
Supreme Court Strikes Down California’s Prohibition of Class Action Waivers in Arbitration Agreements
Continuing to uphold the enforcement of arbitration agreements, the U.S. Supreme Court has struck down the California courts’ refusal to enforce class action waivers in consumer arbitration agreements on the ground that the state law is preempted by the Federal Arbitration Act. AT&T Mobility LLC v. Concepcion, No. 09-893 (Apr. 27, 2011). The ruling would appear to apply to arbitration agreements in the employment context as well. The Court reversed the decision of the Ninth Circuit Court of Appeals, which had held that AT&T’s arbitration clause was unconscionable and unenforceable under California law.
Supreme Court Expands Use Of Arbitration Agreements
On April 27, 2011, the U.S. Supreme Court upheld the enforceability of class action waiver provisions in arbitration agreements. Under such provisions, parties both agree to arbitrate their disputes, and waive the right to participate in class action lawsuits or class arbitrations. The Court's ruling allows businesses to require customers to arbitrate their disputes individually, and reaffirms the federal policy favoring arbitration. This is good news for employers. AT&T Mobility LLC v. Concepcion.
Arbitration As Protection Against Class Actions
Today the Supreme Court gave a powerful tool for employers to avoid collective and class actions when it overturned the 9th Circuit's decision in ATT Mobility LLC v. Concepcion (4.27.11) [pdf]. Justice Scalia writing for a sharply divided court, split on the now familiar lines, rejected attempts by states (in this case California) that would prohibit arbitration agreements which prohibit class treatment of claims.
E-Discovery Preservation Obligations in Class and Collective Actions
The first (and most important) rule of e-discovery in nearly all cases is to preserve electronically-stored information (ESI) correctly. If a party preserves ESI properly, most other missteps can be corrected. To comply with the duty to preserve, a party must issue and enforce proper litigation holds (and do so in a timely fashion) and suspend procedures or processes that would otherwise result in systematic destruction of relevant ESI. The minimum requirements for a proper litigation hold include:
Blanket Policies Can Increase Your Risk of A Class Action Lawsuit
Generally, employees have not been successful in trying to bring class actions under the Americans with Disabilities Act (ADA). The reason is that unlike Title VII or the Age Discrimination in Employment Act it's not enough for an employee to belong to a protected class. Under the nondiscrimination provisions of the ADA, an employee must be a "qualified individual with a disability." Determining whether the class members are all qualified generally forecloses treating them as a class.
What Employers Can Learn from the Novartis Lawsuit.
Pharmaceutical giant Novartis recently defended a class action lawsuit filed by thousands of its female sales representatives alleging discriminatory treatment in pay and promotions. It was the largest gender discrimination case ever to reach a jury verdict.
STARBUCKS NARROWLY ESCAPES CLASS ACTION OVER EMPLOYMENT APPLICATION FOIBLE (pdf).
Almost every employer uses some form of written
job application. However, many employers are
unaware of legal requirements governing what
types of questions a job seeker may be asked.
Employers who do not follow these rules face stiff
penalties and expensive compliance lawsuits.
The Next Wave - Systemic Discrimination Class Actions.
The apparent next wave of employment discrimination class actions appears to be cases focusing on so-called systemic discrimination. The Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) have undertaken recent initiatives to this effect. And prominent plaintiffs attorneys have said these cases are the future of employment class actions.
Class Action Update: New Class Action Fairness Act (pdf).
As part of his reelection campaign, President George W.
Bush promised significant class action reform. The Class
Action Fairness Act, which he signed into law on
February 18, 2005, is a step in that direction. The Act
aims to reduce frivolous lawsuits against businesses by
allowing the removal of large class claims from state
courts to federal courts.
