Collective Actions

Earlier this month, U.S. Immigration and Customs Enforcement (“ICE”) reported that Carlos Escobar-Mejia, a 57-year-old Salvadoran man, died in custody at the Otay Mesa Detention Center in California. Mr. Escobar-Mejia was the first reported individual in ICE detention to die from COVID-19. Though Mr. Escobar-Mejia had lived in the U.S. for over 40 years, an immigration judge during a recent bond hearing had deemed him a “flight risk.” Pursuant to a federal court order issued on April 30, 2020 in response to a lawsuit filed by the American Civil Liberties Union (“ACLU”), ICE compiled a list of individuals in detention—including Mr. Escobar-Mejia—who were evaluated as medically vulnerable and thus eligible for immediate release. This order arrived just weeks after ICE reportedly released nearly 700 individuals from ICE detention due to concerns about the spread of COVID-19. In making its determination, ICE considered factors such as each individual’s immigration history, criminal record, flight risk, and national security concerns. On May 25, ICE confirmed yet another grim milestone: 34-year-old Santiago Baten-Oxlag became the second person to died of COVID-19 while in ICE custody. Federal immigration laws permit ICE and immigration judges to release individuals on bond or with alternative conditions while their removal proceedings are pending. The fact that ICE was able […]

Mass layoffs have unfortunately become an economic reality during the COVID-19 pandemic. Employees should know, however, that federal and New York employment laws can provide important rights for employees who lose their jobs in a mass layoff. The federal Worker Adjustment and Retraining Notification (WARN) Act protects employees of a business with 100 or more full-time workers. An employer who conducts a mass layoff (generally defined as laying off 500 workers or 1/3 of a worksite) must give employees 60 days’ notice. In other words, the paychecks cannot stop tomorrow; they must continue for 60 days. And, if they do, the employee has the right to bring a lawsuit in federal court. The New York WARN Act goes further and providers additional protections: It applies to businesses with 50 or more New York workers and kicks in when closing or layoff affects 25 workers or 1/3 of all workers at a worksite. In addition, the New York WARN Act requires that an employer provide 90 days’ notice of a layoff. Employers who fail to provide notice are liable to employees for back pay (wages for the notice period) and other benefits. They can also be forced to pay the employee’s […]

Any day now, the Supreme Court will issue its decision in Epic Systems Corp. v. Lewis,[1] a case that will determine whether employers can force employees to resolve legal claims through individual arbitration, without recourse to class or collective proceedings. Section 7 of the National Labor Relations Act would seem to prohibit such arbitration clauses. Specifically, Section 7 grants employees the right “to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”[2] As U.S. Courts of Appeals have held, “a collective or class action suit constitutes ‘concerted activit[y]’ under Section 7.”[3] But in recent years, the Supreme Court has let corporations use arbitration agreements as a shield against class-action lawsuits. In 2011, in AT&T Mobility LLC v. Concepcion,[4] the Court held that states cannot extend the right to pursue class-actions to consumers who have signed class-action waivers, even when these waivers are buried in Dickensian-length fine print. Two years later, in American Express Co. v. Italian Colors Restaurant,[5] the Supreme Court upheld a class-action waiver routinely used by American Express, even though the plaintiffs demonstrated that a class-action lawsuit was their only cost-effective means for pursuing valid legal claims. Concepcion and Italian Colors have […]

In a precedent-setting decision late last month, the United States Court of Appeals for the Seventh Circuit deemed an employee arbitration agreement unenforceable on the ground that it violated the National Labor Relations Act (NLRA). The decision is a major win for employees because it recognizes their right to challenge unlawful employment policies and conditions by engaging in collective legal proceedings. But that victory could have a short life span: the court’s decision creates a circuit split, so the Supreme Court likely will have to step in to clarify the relationship between employment arbitration contracts and the NLRA. According to the Seventh Circuit, the arbitration agreement at issue in Lewis v. Epic Systems Corp. contained two rules: “first, any wage-and-hour dispute must be submitted to arbitration rather than pursued in court; and second, no matter where the claim is brought, the plaintiff may not take advantage of any collective procedures available in the tribunal.” Although Jacob Lewis accepted the agreement when Epic emailed it to him in April of 2014, he later sued the company in federal court, contending that it had unlawfully deprived him and his fellow technical writers of overtime pay. After Epic moved to compel individual arbitration, Lewis argued […]

The recent big news in lawyer land is the nomination of Chief Judge Merrick Garland of the US Court of Appeals for the DC Circuit to replace Justice Scalia. He is, by all appearances, eminently qualified, a model public servant, and at least a tad (I say in jest) to the left of the late Justice Scalia. That should be good news for advocates of workplace equality. So, I set out to do a little research on this point. SCOTUSblog has a great summary of Judge Garland’s jurisprudence. When it comes to civil rights, it notes that “Judge Garland has not been called upon to decide many civil-rights-related claims of great significance.  It is difficult to label him as inclined either towards or against such claims, given that the panels on which he sat in such cases were generally unanimous.” SCOTUSblog has an excellent wrap up of Judge Garland’s civil rights cases. But it doesn’t touch on one issue near and dear to my heart and to the firm at which I work: class actions. Many commentators have noted that in recent years, class actions have had few enemies worse than Justice Scalia. He authored decisions permitting big companies to require […]

Arbitration agreements are quickly becoming employers’ best and most common defense against class action lawsuits by their employees. As discussed in the recent New York Times article “Arbitration Everywhere, Stacking the Deck of Justice,” in addition to depriving employees of the opportunity to have their claims heard in court, arbitration agreements often waive employees’ right to participate in class actions, a crucial means of redressing wrongdoing that affects large groups. Given the ubiquity of arbitration agreements, workers may assume they have no option but to acquiesce.  But many workers actually do have a choice: opting out. Some arbitration agreements are, by their terms, effective unless the employee chooses for them not to be. This is called “opting out.” It is a (usually simple) process that exempts workers from the terms of the arbitration agreement, usually by merely checking a box or sending a letter. However, employees need to act quickly as the window for opting out is usually brief. The opt-out process may require the employee to indicate her desire to opt-out directly on the agreement itself, or it may allow the employee a period of several days or weeks in which to notify the employer of the intention to opt-out. Employees who do […]

As I’ve noted previously on this blog, it is important for workers to understand how forced arbitration—a seemingly innocuous procedural issue—undermines their civil rights. Earlier this week I talked with Roberta Steele, Program Director at the National Employment Lawyers Association.  Roberta’s work focuses on issues that prevent workers from having full and equal access to the courts.  Prior to joining NELA, Roberta spent 17 years with the law firm now known as Goldstein, Borgen, Dardarian and Ho in Oakland, CA, where she represented plaintiffs in employment discrimination and wage and hour class and collective action litigation. Q.        Why is forced arbitration bad for workers? A.        There are really two big problems with forcing people to enforce their rights in arbitration rather than in court: a lack of transparency and a lack of accountability. First, you can get bad judges and bad decisions in court just like you can in arbitration, but in court, unlike in arbitration, the proceedings and documents are open and public.  The vast majority of documents filed in court are public and the hearings are held in public. In arbitration, this is not the case.  Nothing is public.  Nothing is open to public scrutiny.  This is a problem […]

As women’s rights activists chart a new course in the wake of the Supreme Court’s Hobby Lobby decision, will they increasingly take the feminist fight directly to corporations with weak records on gender equality? In the wake of last week’s ruling, pockets of activists have taken to social media and mounted protests at locations of the religiously conservative arts-and-crafts chain, which can now opt out of a federal requirement to pay for contraceptives in health coverage for its workers. The Court’s widely-criticized decision is feared to prevent female workers, particularly those at lower income levels, from obtaining medical services such as IUDs and the morning-after pill. And from a tactical perspective, the decision has left some in the feminist movement debating what comes next. One potential answer — direct mobilization targeting corporations with anti-women policies — has sprung up following the Court’s ruling. Online activists have circulated boycott Hobby Lobby petitions, including one that has nearly 200,000 signatures on the Daily Kos website, and the hashtag #boycotthobbylobby has trended on twitter. Over the July 4th holiday weekend, consumers mounted small-scale protests at store locations in far-flung places such as Tulsa, Okla., Warwick, R.I. and Aurora, Ill. Although it is debatable if these efforts will gain traction, they could represent a new focus […]