Employment Class Action Blog

Employment Class Action Blog

Information and Commentary on Class Action Cases Affecting Employers

FedEx to Pay $228 Million in Independent Contractor Misclassification Settlement

Posted in Independent Contractors

money 490527761_lgThings that $228 Million will buy:

– LeBron James’s waterfront mansion in Miami, listed for $15 million

– A 710-year old copy of the Magna Carta, sold in 2007 for $21.3 million

– The Oakland A’s, sold in 2005 for $180 million

– Three personal submarines, at $2 million each; and

Tivi Island in Fiji (yes, the whole island), available for $5 million.

Or you can settle a lawsuit.   Continue Reading

Supreme Court Agrees to Hear Case Addressing Scope of Wage and Hour Class and Collective Actions

Posted in Collective Action, FLSA, Wage and Hour

supreme court iStock_000005215190_LargeIt’s hard enough to predict what the Supreme Court will do on a given case even after it has been briefed and oral argument has been heard. It’s even harder when all we have is the decision accepting certiorari, but this one is important enough to note. The Supreme Court has now accepted certiorari in a case that may present significant issues regarding when class and collective actions may be certified, and whether and how damages and liability may be determined on a class-wide basis. Continue Reading

Justices Pass on Second Opportunity to Resolve the California PAGA Divide in the Bridgestone Case

Posted in Arbitration, PAGA

Employment Class ActionFor a second time the U.S. Supreme Court declined to hear a case challenging a California Supreme Court holding that the state’s Private Attorneys General Act (PAGA) could not be waived in a mandatory arbitration agreement. The January 5, 2015, certiorari petition in Bridgestone Retail Operations, LLC v. Brown, No. 14-790 asserted:

This case presents an issue of exceptional importance not only because it is an attempted end-run around this Court’s decision in [AT&T Mobility v. Concepcion] but also because it allows states to evade the [Federal Arbitration Act (FAA)] more broadly by rendering any claims non-arbitrable simply by deeming it brought “on behalf of the state.” (Petition at 3-4).

In a January 21, 2015, posting we discussed the denial of certiorari in a predecessor case, CLS Transp. Los Angeles LLC v. Iskanian, No. 14-341, leaving in place the California Supreme Court’s June 23, 2014, ruling that PAGA claims could not be waived in an arbitration agreement.

Continue Reading

Unanimous Supreme Court Holds EEOC Must Conciliate

Posted in Discrimination, EEOC

gender discrimination. . .  just not very much.

Title VII was passed with a strong bias toward voluntary, non-litigation methods of dispute resolution. Indeed, the statute requires that even when the EEOC has found probable cause, the Commission “shall endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. section 2000e-5(b). It was a good idea then and remains so today.

But particularly in recent years, the EEOC has forgone this commonsense statutory imperative in the apparent hopes of scoring greater publicity. Many courts have questioned, and even dismissed, cases brought by the EEOC because of its use of only the most feeble conciliation efforts, if any at all. We blogged one such case over four years ago, in which a Missouri District Court dismissed a pattern and practice claim that the EEOC claimed affected 50 employees, yet it had attempted conciliation on only a handful of individual claims. Other courts adopted different approaches. Continue Reading

Video Interview: Discussing Social Media and Class Actions with LXBN TV

Posted in Class Certification, Collective Action, FLSA

Following up on my recent post discussing the use of social media for class action notices in a lawsuit filed against Gawker Media, I had the opportunity to discuss the subject with Colin O’Keefe of LXBN. In the interview, I explain what’s happening in this specific case and how it’s laid some ground rules for the practice.

Gawker Interns and the Use of Social Media to Notify Potential Class Members

Posted in Collective Action, Conditional Certification, FLSA

Social media has dramatically impacted many areas of law, and class and collective action litigation is no exception. Recently, a number of former internsbigstock-Social-Media-Sign-28292228 who sued Gawker Media LLC and its owner Nick Denton (Gawker) for wage and hour claims repeatedly sought court approval to distribute court-authorized notice of the action through social media.

The plaintiffs claimed that Gawker, an online media company and weblog network, violated the Fair Labor Standards Act (FLSA) and New York State Labor Law by failing to properly pay its interns the minimum wage and by failing to maintain proper records. The action was originally filed on June 21, 2013, and was conditionally certified under the FLSA on August 15, 2014. We initially blogged about this case on August 20, 2014. Continue Reading

Two California Juries to Decide Whether Uber and Lyft Drivers Are Employees or Contractors

Posted in Independent Contractors

car map iStock_000013048916_LargeThe core business models of both Uber and Lyft have just been turned over to two separate California juries. These groups of randomly selected citizens will determine whether the drivers for both companies have been properly classified as independent contractors, or whether both companies owe potentially millions of dollars in fines and penalties for having failed to treat their drivers as employees.

Can you think of a scarier thought?  Well, of course you can, but stay with me here:  The legitimacy of the entire business model for these companies is going to be determined by a handful of jurors with presumably no legal or business background. The two federal judges who were asked to decide these issues both decided that they could not decide. Continue Reading

Fourth Circuit Rejects EEOC Expert Report Riddled With Errors

Posted in Discrimination, EEOC

We’ve written before on the questionable statistics used by the U.S. Equal Employment Opportunity Commission (EEOC) in other cases, and a recent court of appeals case involving background checks suggests that the EEOC is continuing to use such methods despite scathing criticism from courts.

On February 20, 2015, the U.S. Court of Appeals for the Fourth Circuit affirmed a Maryland federal district court’s entry of summary judgment against the EEOC with respect to its lawsuit alleging that an employer’s background check program violated Title VII of the Civil Rights Act of 1964. EEOC v. Freeman, Case No. 13-2365 (4th Cir. Feb. 20, 2015). We blogged the district court’s decision here. In both a unanimous majority opinion and a separate concurring opinion authored by U.S. Circuit Judge G. Steven Agee, the judges excoriated the EEOC and its expert for the statistical analysis submitted in support of the agency’s claim that the employer’s criminal and credit checks had a discriminatory disparate impact on black and male applicants. Continue Reading

Opalinski v. Robert Half International, Inc. — A Footnote in a Prior Opinion Doesn’t Signal the Supreme Court’s Willingness to Resolve Who Decides the Availability of Class Arbitration

Posted in Arbitration, FLSA

After reading the Supreme Court’s opinion in Oxford Health Plans, LLC v. Sutter, 133 S. Ct. 2064 (2013), some might have concluded that the Court was ready to resolve who determines the availability of class arbitration court or arbitrator — in the right case. See 133 S. Ct. at 2068 n.2. But on March 9, 2015, the Justices denied certiorari in Opalinski v. Robert Half International, Inc., Case No. 14-625, a case raising just that question. Have intervening opinions and revised arbitration agreements made the issue inconsequential or moot? Practically speaking, most contemporary arbitration agreements likely remove ambiguity about class arbitration by explicitly excluding it from available remedies.

As usual, the Court did not provide reasoning for the denial. Consequently, the certiorari briefs and prior opinions are the only sources of insight into the decision. Continue Reading

Ding-Dong, Yard-Man Is Dead! Supreme Court Decision in Tackett a Huge Win for Employers in the Retiree Healthcare Arena

Posted in Benefits

On Monday, a unanimous United States Supreme Court issued its decision in M & G Polymers USA, LLC v. Tackett, Supreme Court Case No. 13-101, vacating and remanding the Sixth Circuit’s holding that a group of retirees was entitled to lifetime healthcare benefits per the terms of various collective bargaining agreements.  In doing so, the Supreme Court rejected UAW v. Yard-Man Inc., 716 F.2d 1476 (6th Cir. 1983), and its progeny, and directed lower courts to determine whether retiree health benefits vest based on ordinary contract principles without any presumption or inference in favor of vesting.

For employers located in the 46 states outside the Sixth Circuit, it may be unclear why this case is a big deal.  For the lucky majority, a brief history lesson is in order.  Outside the Sixth Circuit, a collective bargaining agreement, and the obligations it contains, expires on its expiration date.  Thus, the parties must come to agreement as to the new terms at relatively regular intervals, taking into account market forces, changes in their relative bargaining positions, and their respective interests.   However, in 1983, the United States Court of Appeals for the Sixth Circuit rendered its decision in Yard-Man, in which it manufactured an “inference” that retiree welfare benefits, primarily paid health insurance, would “vest” and would survive the clear expiration of the agreement. Continue Reading