I had the privilege today of presenting on the topic of “The Risks U.S. Workplace Class Actions Pose For Businesses” to a group of European corporate counsel and business executives at the Swiss Re Centre For Global Dialogue in Zurich, Switzerland. It was a signal honor to present on this topic to business and legal leaders in Europe.
I offered a defense lawyer’s view of the landscape of workplace class action developments in the U.S. market over the last 24 months, and ventured some prognostications of likely trends for 2015.
Among other things, I offered that:
1. The EEOC, NLRB, and the DOL are apt to double-down in their campaigns to “regulate by enforcement litigation” in terms of pushing-the-envelope in enforcement litigation during the final year of the Obama Administration. In other words, businesses are likely to see very vigorous litigation and exceedingly aggressive litigation positions by the government.
2. The crest of the tidal wave of wage & hour class action litigation is not yet in sight. The volume of FLSA and state law wage & hour claims continues to increase; the cases are becoming more sophisticated; and able class action litigators on the plaintiffs’ side are migrating to this area in increasing numbers in their search for targets of opportunity.
3. Issue certification under Rule 23 is undergoing a re-birth. Plaintiffs’ class action lawyers are increasingly invoking its use to “certify something” – if even only a small portion of a case – in order to place pressure on employers to pay big dollars to settle and to lay the groundwork for a hefty fee petition.
In turn, my European hosts offered their reactions and perspectives from an “outsider’s view” looking inward to the U.S. legal environment. A summary take-away might best be encapsulated by the following:
- Really? [Reacting to the tidal wave of wage & hour class action litigation, and the relative ease by which plaintiffs’ lawyers can gain access to employee lists for purposes of sending out notice soliciting employees and ex-employees to join an FLSA lawsuit.]
- How can that be? [Reacting to the state of the law wherein workplace arbitration agreements are challenged - often successfully - and deemed insufficient to block a class action, and how such agreements do not prevent the EEOC from launching its own systemic investigation and subsequently suing an employer in the “public interest.”]
- Who is watching the store (or is the system out of control)? [Reacting to the agency positions advocated by the EEOC, NLRB, and DOL in pursuing high-stakes cases, pushing the outer edges of the law, and “regulating” through enforcement litigation.]
Interestingly, the perspective of these European corporate counsel and business leaders is based on their admiration for the “rule of law” in the United States – they respect our system for its stability, predictability, and efficiency in dealing with legal disputes. Workplace class actions may be another kettle of fish, and if nothing else, it proves the axiom that “perspective is everything.”