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.
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