Class Actions in Employment-related Disputes

• Author: Peter S Spiro
• Pages: 71-91

71

CLASS ACTIONS IN

EMPLOYMENT-RELATED

DISPUTES

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 the private sector. Class action law-

suits would appear to be the ideal modern substitute. There

have been a few noteworthy successes 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 meritorious

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 7110/19/2015 11:49:46 AM

CCAR 11-1.indb 7210/19/2015 11:49:46 AM