Law and the Workplace

Category Archives: Class/Collective Action

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UPDATED: Congress Passes Bill Prohibiting Mandatory Arbitration and Class Action Waivers for Sexual Harassment and Sexual Assault Claims

By Guy Brenner, Tony Oncidi, Evandro Gigante, Laura Fant, Theresa Madonna and Ariel Brotman on Posted in Arbitration, Class/Collective Action
***UPDATE: President Biden signed the bill into law on March 3, 2022.  The law takes effect immediately.*** Today, the Senate passed H. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the “Act”), by a voice vote.  The bill had previously passed the House of Representatives by a vote of 335-97. The … Continue Reading

7th Circuit Reverses Denial of Class Certification for Disparate Impact Subclasses

By Steven J. Pearlman, Edward Young and Alyssa M. Cook on Posted in Class/Collective Action
Seventh Circuit SealOn January 6, 2022, the Seventh Circuit Court of Appeals held that the U.S. District Court for the Northern District of Illinois erred in denying class certification to putative subclasses of unsuccessful Black job applicants who alleged that hiring exams used by the Cook County Department of Corrections (“DOC”) resulted in a disparate impact on … Continue Reading

Do We Have to Pay for That?  Part 1—COVID-19 Vaccination, Testing, and Screening Activities (Updated Jan. 13, 2022)

By Allan Bloom on Posted in Class/Collective Action, FLSA, Wage and Hour
In this blog series, we’ll look at a variety of activities and discuss whether an employer has to pay its non-exempt (i.e., overtime-eligible) employees for their time spent engaging in them.  We’ll focus on federal law, but as with all wage and hour issues, applicable state and local laws must be considered as well.  Also, … Continue Reading

Illinois Appellate Court Addresses Statute of Limitations Period for BIPA Claims

By Steven J. Pearlman, Edward Young and Dakota D. Treece on Posted in Class/Collective Action
On September 17, 2021, an Illinois Appellate Court addressed the appropriate statute of limitations period for claims brought pursuant to the Illinois Biometric Information Privacy Act (“BIPA” or the “Act”), 740 ILCS § 14/1, et seq., holding that (1) claims asserted under sections 15(c) and (d) of the Act are subject to a one-year statute of … Continue Reading

Pennsylvania Employers Must Pay for Time Spent in Security Screenings

By Allan Bloom and Eric Novak on Posted in Class/Collective Action, FLSA, Wage and Hour
On July 21, 2021, answering a question certified by the United States Court of Appeals for the Sixth Circuit, the Pennsylvania Supreme Court held that time spent by employees waiting to undergo and undergoing mandatory security screening on an employer’s premises is compensable “hours worked” under Pennsylvania law.  The decision from the Commonwealth’s high court, … Continue Reading

Seventh Circuit Clarifies Scope of Article III Standing Under Illinois BIPA

By Edward Young, H. Ren Morris and Steven J. Pearlman on Posted in Class/Collective Action, Litigation and Arbitration, Workplace Policies and Procedures
On November 17, 2020, the Seventh Circuit held that allegations that a defendant violated Section 15(a) of the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS § 14/1, et seq.—which requires an employer that collects biometric information from its employees to develop, publicly disclose and comply with a data-retention schedule and guidelines for permanent destruction … Continue Reading

Seventh Circuit Finds Article III Standing for an Illinois BIPA Claim

By Edward Young and Steven J. Pearlman on Posted in Class/Collective Action
On May 5, 2020, the Seventh Circuit held that allegations that a defendant violated the Illinois Biometric Information Privacy Act (“BIPA”) by collecting a biometric information without first obtaining informed consent constituted an “injury in fact” sufficient to confer Article III standing.  Bryant v. Compass Group USA, Inc., No. 20-1443.  Prior to this ruling, a … Continue Reading

5th Circuit: Arbitration Available for Employee’s Collective Action Claims

By James W. Barnett and Nicole Eichberger on Posted in Class/Collective Action
On April 16, 2020, the Fifth Circuit held that an employee is entitled to arbitrate his federal labor law claims as a collective action on behalf of his coworkers against their employer, Sun Coast Resources, Inc. (“Sun Coast”). The Fifth Circuit affirmed both the district court’s and arbitrator’s decisions because the arbitration provision at issue … Continue Reading

Second Circuit Affirms Expansion of Gender Bias Class Action against Sterling Jewelers

By Jordan Glassberg and Mark W. Batten on Posted in Arbitration, Class/Collective Action, Title VII
On November 18, 2019, the United States Court of Appeals for the Second Circuit revived a potentially sweeping class action against Sterling Jewelers, Inc. (“Sterling”), holding that potentially tens of thousands of female employees could take part in an arbitration class involving claims of sex discrimination.  The Second Circuit’s holding is the latest in the … Continue Reading

California Supreme Court Hands Employers A Rare Victory, Trims Bloated PAGA Claims

By Tony Oncidi, Andrew Sherwood, Kate Gold and Philippe A. Lebel on Posted in Class/Collective Action
Last week, the California Supreme Court held that private litigants may not recover unpaid wages under the Labor Code Private Attorneys General Act (“PAGA”).  See ZB, N.A. v. Superior Court (Lawson) (Cal. S. Ct. Sept. 12, 2019). In a rearguard effort to fight employment arbitration agreements, which usually include class action waivers, plaintiffs’ lawyers have been routinely filing … Continue Reading

NLRB Greenlights Aggressive Response to Class Action Filings

By Jacob L. Hirsch and Mark W. Batten on Posted in Class/Collective Action
On August 14, 2019, the National Labor Relations Board (the “Board”) held that employers may require employees to waive their right to join class and collective actions – even after a claim has been filed in court – without running afoul of federal labor law.  Cordua Restaurants, Inc., Cases 16-CA-160901, 16-CA-161380, 16-CA-170940, and 16-CA-173451. Background … Continue Reading

How Do Individualized Issues Impact a Class Action Settlement?

By Andrew A. Smith and Steven Hurd on Posted in Class/Collective Action
The Ninth Circuit went a long way towards answering that question in an en banc decision last week. The key takeaway is that a district court certifying a class for settlement purposes does not have to conduct the same “rigorous analysis” of manageability considerations required when certifying a class for litigation. The decision has major … Continue Reading

U. S. Supreme Court Holds that Third-Party Defendants to Counterclaims Cannot Remove Class Actions to Federal Court

By Elise M. Bloom and Noa Baddish on Posted in Appeals, Class/Collective Action
In a 5-4 decision in Home Depot U.S.A. Inc., v. Jackson, 587 U.S. __ (2019), the United States Supreme Court held that a third-party counterclaim defendant does not qualify as a “defendant” under the general removal statute, 28 U.S.C. § 1441(a) or under the Class Action Fairness Act of 2005 (“CAFA”) and therefore cannot remove … Continue Reading

Northern District of New York Denies Class Certification and Decertifies Collective, Confirming Common Answers Not Common Questions Are Required

By Nicole Eichberger and Samantha Shear on Posted in Class/Collective Action
On April 26, 2019, the Northern District of New York held that a group of Plaintiffs failed to satisfy their burden to establish commonality and predominance under Fed. R. Civ. P. 23 and failed to sustain their burden that they were similarly situated to continue as a FLSA collective with respect to their misclassification claims … Continue Reading

United States Supreme Court Says Courts Cannot Compel Classwide Arbitration Absent Affirmative Contractual Agreement

By Elise M. Bloom, Hayley H. Fritchie and Noa Baddish on Posted in Appeals, Arbitration, Class/Collective Action
In a 5-4 decision authored by Chief Justice Roberts on April 24, 2019, the United States Supreme Court held that the Federal Arbitration Act (“FAA”) precludes a court from compelling class arbitration when an agreement is ambiguous on the availability of such arbitration. Lamps Plus Inc. et al. v. Varela, No. 17-988, 587 U.S. ___ … Continue Reading

Massachusetts SJC Weighs in on Wage Act Class Actions and Offers of Judgment

By Mark W. Batten, Samantha Regenbogen Manelin and Thomas B. Fiascone on Posted in Class/Collective Action, Wage and Hour
On Friday April 12, 2019, the Massachusetts Supreme Judicial Court confirmed that plaintiffs seeking to bring class actions asserting Massachusetts Wage Act (“Wage Act”) violations must meet the certification standards set by Massachusetts Rule of Civil Procedure 23 (“Rule 23”), and cannot avail themselves of a lower bar to class certification. In Gammella v. P.F. Chang’s China Bistro, … Continue Reading

United States Supreme Court Says that Equitable Tolling Cannot Extend Deadline to Appeal Class Certification Decisions Under Rule 23(f)

By Elise M. Bloom, Mark W. Batten and Noa Baddish on Posted in Appeals, Class/Collective Action
In a unanimous decision authored by Justice Sotomayor on February 26, 2019, the Supreme Court held that the 14-day deadline to seek permission to appeal a decision granting or denying class certification under Federal Rule of Civil Procedure 23(f) cannot be extended through the doctrine of equitable tolling. Nutraceutical Corp. v. Lambert, No. 17-1094, 586 … Continue Reading

Massachusetts Supreme Judicial Court OK’s Attorneys’ Fees for Wage Act Settlements

By Mark W. Batten, Samantha Regenbogen Manelin and Thomas B. Fiascone on Posted in Class/Collective Action, Wage and Hour
As has been long anticipated, the Massachusetts Supreme Judicial Court recently gave a green light to plaintiffs’ attorneys seeking a fee award under the Commonwealth’s Payment of Wages Act, even where an action ends in settlement.  The Wage Act (Mass. General Laws ch. 149 §§ 148, 150) awards costs and fees when an employee “prevails” … Continue Reading

Proskauer Delivers Webinar on Settling Employment Claims

By Allan Bloom, Elise M. Bloom, Hayley H. Fritchie and Harris Mufson on Posted in Class/Collective Action, Discrimination, Harassment and Retaliation, Wage and Hour, Whistleblower
On December 12, Proskauer partners Allan Bloom, Elise Bloom, and Harris Mufson delivered a webinar focused on how recent developments in the law impact the ground rules and key strategies for settlement in four distinct areas of employment litigation. Wage and Hour. Mr. Bloom explained that, in most jurisdictions, settlements of Fair Labor Standards Act … Continue Reading

Ninth Circuit Holds that Last-Known Addresses of Putative Class Members Are Insufficient To Satisfy CAFA Exceptions

By Elise M. Bloom, Mark W. Batten and Noa Baddish on Posted in Class/Collective Action
The Class Action Fairness Act (“CAFA”) permits removal of many class actions from state to federal court, but includes a “local controversy” exception that forbids removal where two-thirds or more of the proposed class resides in the state where the action is brought. In disputes over efforts to use CAFA to remove class actions, the … Continue Reading

Supreme Court Rules in Favor of Employers in Upholding Arbitration Agreements Containing Class Action Waivers

By Allan Bloom, Mark W. Batten and Travis Hall on Posted in Class/Collective Action, Litigation and Arbitration
On May 21, 2018, the Supreme Court of the United States ruled in Epic Systems Corp. v. Lewis that employers can require employees to arbitrate disputes with the employer individually and waive their right to pursue or participate in class or collective actions against their employer. Ruling 5-4 in favor of an employer’s right to … Continue Reading

SDNY Denies Approval in FLSA Settlement Based In Part on Overly Broad Non-Disparagement Clause

By Allan Bloom on Posted in Class/Collective Action, Wage and Hour
In its November 17, 2017 opinion in Galindo v. East County Louth, Inc. (No. 16 Civ. 9149), the Southern District of New York denied a motion to approve an individual FLSA settlement, including on the ground that the settlement agreement contained what the Court deemed to be an overly broad non-disparagement provision. In the settlement … Continue Reading

Seventh Circuit Limits Ability to Moot Claims of Class Representative in the Wake of Campbell-Ewald

By Edward Young and Steven J. Pearlman on Posted in Class/Collective Action
On June 20, 2017, the Seventh Circuit ruled that a defendant cannot moot the individual claims of a putative class representative by depositing an unaccepted settlement offer with the court covering all relief purportedly owed to that representative. Fulton Dental, LLC, v. Bisco, Inc., No. 16-cv-3574 (7th Cir.). Plaintiff brought a putative class action lawsuit … Continue Reading
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