The Supreme Court has issued a number of important decisions in recent years impacting employment class and collective actions, including Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011) and Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016). These and other decisions have influenced how employment class actions are investigated and litigated.
Even well before the current focus of the Supreme Court on class actions, though, practitioners investigated potential class cases differently from individual ones. In addition to looking for the number of employees affected by a potentially suspect policy, plaintiffs’ lawyers need to understand what common practices may be associated with disparities, and be on the look-out for a number of other issues.
Pre-discovery, there is no way to make a fulsome statistical case, and employers’ attempts to ratchet up pleading standards as though there were such a requirement should be rejected - and have been rejected in the main.
However, it is especially important to identify early on problematic policies in employment discrimination cases, such as forced ranking, or the use of unreliable and/or invalid criteria in evaluations and compensation setting. And, it is especially important to think about common proof in wage cases, while mindful of the continuing vitality of the substantive wage law that puts the onus on the employer to keep proper time records.
Having survived a pleading, the employee-side lawyer has to consider data and experts early and often. This is especially so in Rule 23 proceedings and stage-two collective action proceedings, the latter of which is applicable to FLSA and Equal Pay Act cases.
Employment cases historically have been at the forefront of the development of facilitating structures for handling group actions, from the Teamsters model to the decades-old use of representative testimony in FLSA matters. While developments in the law (and statutory developments) have affected how employment class actions are approached, class actions remain a crucial vehicle to vindicate employee rights.
Rachel Geman is a partner in the New York office of Lieff, Cabraser, Heimann & Bernstein, with a practice dedicated to employment law and consumer protection, and to recovering money for the government lost to fraud through False Claims Act litigation – with cases typically brought by employee whistleblowers. On behalf of her clients, Rachel has filed qui tam suits involving multiple industries in multiple courts that are under investigation, and is presently involved in active litigation involving off-label and kickback claims in the pharmaceutical industry. Rachel’s current class actions are in the employment discrimination, consumer civil rights, and consumer protection areas.
Rachel’s successes include representing employee benefit plans and other investors in recovering $65 million from AXA Rosenberg relating to its handling of investments; serving as Co-Lead Class Counsel or counsel for the class in a series of cases against large banks alleging deceptive marketing and unfair practices in the sale of “payment protection” products, resulting in more than $50 million in settlements; and litigating and settling a class gender discrimination suit on behalf of female financial advisors at Bank of America/Merrill Lynch for $39 million plus programmatic relief. Rachel was on a team that litigated the largest False Claims Act case in history involving U.S. Department of Education, ultimately recouping $78.5 million from the University of Phoenix; and has litigated multiple wage and hour cases, including making up to $35 million available to employees through settlement of hard-fought wage and hour litigation against Wal-Mart in Washington State.
The thread combining Rachel’s cases is her drive for basic fairness combined with her interest in unraveling complex fraud, in her capacity both as an experienced litigator and a Certified Fraud Examiner. She has spoken and written extensively on class action, whistleblower, and employment law topics, and has taught a course she designed on international employment law as an adjunct law professor.
Good and clearly knowledgeable presenter but maybe too much material to cover in appropriate depth within one hour, seemed disjointed.
Interesting overview on class actions in the employment law context. Definitely relevant to my practice area.
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