The U.S. House of Representatives on November 19, 2021, passed the Build Back Better Act (H.R. 5376), ambitious climate protection/social spending legislation that now awaits deliberation in the Senate. Tucked inside the massive bill are numerous provisions of interest to employers. One such provision would amend the National Labor Relations Act (NLRA) to make it an unfair labor practice for an employer to require employees to waive the right to initiate or join a class or collective action. Coupled with an additional provision that would impose steep civil monetary penalties for violations of the NLRA, the bill effectively may prohibit employers from adopting class and collective action waivers.

It is questionable whether the bill would pass the Senate with these provisions intact; if it does, however, the Build Back Better Act would usher in a harsh class action litigation climate for employers.

Read more here.

 

 

The Fall 2021 edition of the Jackson Lewis Class Action Trends Report looks at the class action risks that arise as employers navigate return-to-work during this precarious stage of the COVID-19 pandemic. Employee symptom screening, mask and vaccine mandates, returning reluctant remote workers to the office–all pose operational challenges as well as potential exposure to classwide liability.

In this issue, we also survey the COVID-19 litigation landscape, reviewing class actions filed since the onset of the pandemic and the most recent complaint filings.

Read it here: Fall 2021 Class Action Trends Report

 

 

 

The right of plaintiffs to sue for technical violations of the Fair Credit Reporting Act (FCRA) and other federal privacy laws has been the subject of much class litigation in recent years. The U.S. Supreme Court addressed this increasingly salient issue in Spokeo, Inc. v. Robins, 578 U. S. 330 (2016). “‘Article III standing requires a concrete injury even in the context of a statutory violation,’” the Spokeo Court explained.

Now, the Court has held in a sharply divided 5-4 decision that consumers whose inaccurate credit files were released to third parties by a credit reporting agency suffered a concrete reputational injury and, therefore, had standing to bring claims that the credit reporting agency failed to ensure the accuracy of its credit records. TransUnion LLC v. Ramirez, No. 20-297 (June 25, 2021). However, consumers whose inaccurate credit reports were not disseminated to third parties did not suffer cognizable harm and lacked standing to sue.

The takeaway: “A statutory violation, without more, will not allow an individual entrance to federal court,” note Stephanie L. Adler-Paindiris, co-leader of the firm’s General Litigation Practice Group, and Jason Selvey, a principal in the firm’s Chicago office who regularly defends FCRA cases. In their analysis of the Court’s decision, they write: “TransUnion should strengthen arguments regarding standing in certain employment cases and class actions. In recent years, many employment class actions have been premised on technical statutory violations. Examples include actions alleging defective FCRA notices issued when conducting preemployment background checks, defective COBRA election notices, and violations of state privacy laws. Employers defending such actions may be able to show that some or all of the employees alleging these mere technical violations have not suffered any concrete harm and, therefore, their claims should be dismissed.”

It was a class action case that captured the attention of sports fans across the country: The United States Supreme Court agreed to tackle the issue of “amateurism” in collegiate sports, and the extent to which the National Collegiate Athletic Association (NCAA) could limit the education-related benefits that institutions of higher education within the NCAA umbrella could pay to student athletes without violating federal antitrust laws. In a unanimous June 21, 2021, decision in NCAA v. Alston, the Justices held that the NCAA restrictions at issue amounted to an unlawful restraint of trade.

In a recent blog post, Gregg E. Clifton, a Principal in the Phoenix office of Jackson Lewis and Co-Leader of the firm’s Collegiate and Professional Sports Practice Group, gives a detailed analysis of the Supreme Court’s decision, the sweeping view articulated by Justice Kavanaugh in his concurrence, and the larger context of the decision and its impact on college athletics.

Read Gregg’s analysis here.

The Ninth Circuit’s opinion is an important clarification of the cognizable harm required to establish Article III standing under the Private Attorneys General Act (“PAGA”) and the Labor Code’s wage statement requirements.

The critical takeaways:

  • An employee does not have standing to bring PAGA claims in federal court for alleged Labor Code violations that the employee themselves did not suffer.
  • An employer may make lump-sum payments as a retroactive adjustment to employees’ overtime rate to factor in bonus payments without identifying a corresponding “hourly rate” for the payment on employees’ wage statements.

A discussion of the Ninth Circuit opinion appears in the Jackson Lewis California Workplace Law Blog.

 

In our latest issue of the Class Action Trends Report, Jackson Lewis attorneys discuss how employers can undertake Diversity, Equity and Inclusion (DEI) initiatives without risking class action discrimination suits; wage and hour compliance issues arising from the COVID-19-induced work-from-home surge; and a landmark Fifth Circuit decision rejecting the common two-stage framework for conditional certification of Fair Labor Standards Act collective actions.

Virginia employers are at increased risk of class action wage litigation following passage of the Virginia Overtime Wage Act.

“Previously, Virginia had been content to rely on the overtime pay requirements of the federal Fair Labor Standards Act (FLSA),” note Kristina H. Vaquera and Shaun M. Bennett in a recent Jackson Lewis legal alert discussing the new statute, which Governor Ralph Northam signed into law on March 31, 2021. Like the FLSA, the Virginia Overtime Wage Act obligates employers to pay one and one-half times an employee’s regular rate of pay for hours worked in excess of 40 in a workweek. Also like the FLSA: Beginning July 1, 2021, employees will be entitled to pursue state-law overtime claims as collective actions.

Virginia law typically does not authorize class or collective actions. However, there are exceptions, and the Virginia Overtime Wage Act is now one of them. Amendments to existing sections of the Virginia Code accompanying the new law authorize collective actions “consistent with the collective action procedures of the Fair Labor Standards Act” for violations under the Virginia Overtime Wage Act.

In addition, the Virginia law departs from the FLSA in several important, employee-friendly ways, including a lengthier limitations period to bring potential claims (three years is the default liability period), and the availability of greater damages. (The Virginia law also differs from the FLSA in how the regular rate of pay is calculated.) The bottom line is that Virginia employers face the possibility of defending overtime claims of multiple employees in a collective lawsuit covering workweeks up to a three-year period.

The Virginia Overtime Wage Act creates the potential for significant liability to employers that fail to properly classify and compensate their employees. Employers operating in the state should review their overtime pay practices to ensure compliance with both the FLSA and the new Virginia law.

The detailed discussion of the Virginia law can be found here.

If you have any questions about the Virginia Overtime Wage Act and its collective action provision, consult a Jackson Lewis attorney.

A website is not a “place of public accommodation” within the meaning of Title III of the Americans with Disabilities Act (ADA), a federal appeals court has held in a groundbreaking decision on disability discrimination. And an inaccessible website is not necessarily equal to the denial of goods or services. Gil v. Winn-Dixie Stores, Inc., No. 17-13467 (11th Cir. Apr. 7, 2021).

Website access class action lawsuits have proliferated in recent years. Businesses being sued have ranged from small “mom and pop” restaurants to Fortune 50 corporations. The surge began in 2016, with more than 260 suits filed. The numbers swelled after a federal court in Florida, in June 2017, held that a regional grocery chain must ensure its website is ADA-compliant. As such, this decision is welcome news to businesses operating in the Eleventh Circuit.

The decision is especially favorable for entities that operate fully online businesses, as “it holds that a website itself is not a place of public accommodation to which the ADA applies,” write Mendy Halberstam, Joseph Lynett, and Rebecca McCloskey, in their detailed analysis of the decision. In addition, they note, brick-and-mortar businesses that provide alternative means for disabled patrons to obtain goods and services, such as in-person or by phone or email instead of just through a website, also will find good points in the court’s decision.

As the authors advise, “it remains to be seen whether other circuits will follow or that the court’s decision will be favored with respect to state disability laws. Businesses must carefully scrutinize the interplay between federal and state disability laws in order to determine the correct course.”

The Illinois Supreme Court recently agreed to hear an appeal of an Appellate Court’s decision addressing whether an employee’s claim for damages under Illinois’s Biometric Information Protection Act (BIPA) is preempted by the exclusivity provisions of the Illinois Workers’ Compensation Act (IWCA).

Over the past few years. there has been a significant number of class action lawsuits under the BIPA. A key defense for employers defending BIPA lawsuits has been that the BIPA is preempted by the IWCA. Back in September, the Illinois Appellate Court for the First Judicial District held that employees’ BIPA claims were not preempted under the IWCA and could go forward. The Illinois Supreme Court will consider whether this defense has merit, and perhaps reign in the significant number of lawsuits, including putative class actions filed under the BIPA.

In their recent blog post, Maya Atrakchi and Jason C. Gavejian, attorneys in Jackson Lewis’ Privacy, Data and Cybersecurity Practice Group, urge companies to “immediately take steps to comply with the statute.”

 

BIPA poses class-wide risks to companies with operations in Illinois or who engage with employees or consumers in the state. However, biometric privacy should be on the radar of companies everywhere, as other biometric laws are in place in other states, and additional legislation has been introduced elsewhere, at both the state and federal levels.

Last year presented many challenges, and 2021 offers a fresh start. In this issue of the Class Actions Trends Report we review the most significant developments of 2020 and look ahead to what a new year and a new presidential administration may mean for employers.

Topics addressed in this issue include:

  • Top 10 class action stories and trends from 2020
  • The increase in class actions challenging 401(k) plan fees
  • Class action developments in areas such as discrimination, wage and hour and arbitration
  • What employers can expect from the Biden administration

Jackson Lewis Class Action Trends Report, Winter 2021