Class Actions in Employment-related Disputes

AuthorPeter S Spiro
Peter S Spiro
Abstract: The traditional means by which workers asserted
their collective rights was the union movement, but that has
been in severe decline in t he private sector. Class action law-
suits would appear to be the ideal modern substitute. There
have been a few noteworthy successe s for employees in the
last few years, helping to ensure that employers in the bank-
ing sector abide by statutory requirements to provide over-
time pay. Certif‌ication has proven to be a signif‌icant hurdle
in these actions, and there appear to be some mer itorious
cases where cert if‌ication was not achieved. It is arguable that
the caselaw that has developed around the f‌inding of a com-
mon issue for certif‌ication is too conf‌ining for the employ-
ment context. The application of the certif‌ication tests ought
to be nuanced and contextua l. Employment class actions typ -
ically involve considerable diversity among individual em-
ployees, and in such situations it makes sense for the court
to focus on the overriding central principles as providing a
common issue, rather than use the individual variations to
reject certif‌ication.
CCAR 11-1.indb 71 10/19/2015 11:49:46 AM
CCAR 11-1.indb 72 10/19/2015 11:49:46 AM

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