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Babies and Bath Water: Class Actions and Employment Law - Part One

Posted by David P. Martin | Jun 14, 2024 | 0 Comments

Can a class action arise in the employment law context? Indeed, it can. It is not uncommon, in fact, when there is a breach of fiduciary duty, which impacts a large number of people in the ERISA context. For example, if there is a failure to provide pension benefit statements to all pension participants, or COBRA notices to a large group of people laid off, a class action may be proper. Under Title VII, a class could arise if there is a policy maintained by a company refusing to permit women to work after the second month of pregnancy. Many lawyers shy away from class action for various reasons.


We all know that some class actions result in some rather testy court opinions. (See e.g., Drazen v. Pinto, No. 21-10199 11th Cir. May 13, 2024).  We have all heard that some class actions have created a poor public image for lawyers with fees recovered that overshadow the coupon or minuscule recoveries for each class member. However, we must not “throw the baby out with the bath water” in the employment context. Class actions in the employment context can be very beneficial toward rebuilding justice for deserving people. It may be rewarding to your practice to spot a class action when evaluating an employment claim, even if referring the matter. So, what do you look for aside from a wrong?


The cases and statutes make clear that the requirements for class certification in an employment case, such as a Title VII employment discrimination, are the same as for any other class action. Rule 23 of the Federal Rules of Civil Procedure sets out the prerequisites and types of class actions that may be maintained in federal court. As you will recall from your law school days, under the Federal Rules of Civil Procedure, Rule 23(a), plaintiffs must satisfy four prerequisites: numerosity, commonality, typicality, and adequacy of representation (NCTA).


To refresh, recall that numerosity requires that the class be so numerous, that joinder of all members is impracticable. Second, commonality requires that there be questions of law or facts common to the class. Third, typicality requires that the claims or defenses of the representative parties be typical of those of the class. Last of all, adequacy of representation requires that the representative parties fairly and adequately protect the interests of the class.


There is a bit more as you may know. “Even if Plaintiffs were to satisfy Rule 23(a), they still have to satisfy at least one of the three paths to certification under Rule 23(b). Coleman v. Gen. Motors Acceptance Corp., 296 F.3d 443, 446 (6th Cir. 2002). ” Speer v. UCOR LLC, 3:22-cv-426, at *9 (E.D. Tenn. Nov. 6, 2023).  We will discuss those three paths and provide some examples in part 2. Stay tuned.


When I look back over about 32 years of practicing law, I often wonder how many class-action opportunities I overlooked due to disdain or discomfort. However, the class can be best tool to address harm to a large group of people. In fact, if it is not economically feasible for each employee to individually bring a lawsuit, it may be the only tool.

About the Author

David P. Martin

Senior & Managing Attorney


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