Class Action Bans and Protected Concerted Activity (Part IV)

There are very straightforward reasons that labor unions and their members have argued that employees, whether they belong to a labor union or not, engage in protected concerted activity when they attempt to join together in a putative, or proposed, class action or collective action in connection with workplace disputes.

Some of those workplace disputes involve allegations that the employer has violated the Fair Labor Standards Act (“FLSA”) by not paying overtime and/or the minimum wage to employees who should have received those payments.  Or employees might bring a discrimination lawsuit based on conduct that applies to a group of employees.

Class actions or collective actions (the latter includes FLSA and federal age-discrimination claims) can be brought more efficiently, at less expense, than the same claims in multiple lawsuits.  In addition, the employer’s liability exposure is higher in a class or collective action.  Of course, that is why employers want to prevent employees from filing those lawsuits.  But no matter how understandable those employers’ motives may be, that does not justify their efforts to prevent employees from exercising their statutory right to engage in concerted activity for their mutual benefit.

That is why the three cases that the Supreme Court has decided to review are so important.  We do not know whether the employees’ position will win a majority of the Court, or whether a majority will find for the employers, or whether these cases will be affirmed on a 4-4 split vote.

In the meantime, Rep. Goodlatte has introduced HR 985, which has the ostensible purpose to “amend the procedures used in Federal court class actions and multidistrict litigation proceedings to assure fairer, more efficient outcomes for claimants and defendants, and for other purposes.”  The full text of that bill is not available on the Library of Congress Web site.  However, I have seen a draft of that bill.  That draft contains provisions that would limit the plaintiffs who could file class actions, impose burdensome new limits on the distribution of money in class actions, and restrict the amount of attorneys’ fees that could be recovered in class actions, among other things.

The right of the people to join together in class actions is under attack.  Keeping existing rights, and protecting employees from one-sided, unilaterally imposed limits on their ability to join together, will require hard work and pressure on Congress.  We can win this fight, but it won’t be easy.

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