Jeffrey H. Ruzal, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in the Bloomberg BNA Daily Labor Report, in “Rules for Approving Wage Collective Actions Teed Up at 5th Cir.,” by Robert Iafolla. (Read the full version – subscription required.)
Following is an excerpt:
A challenge to the two-step process judges use to decide whether workers can sue as a group over alleged violations of federal wage-and-hour laws is set for oral argument Tuesday before a federal appeals court in New Orleans.
The case gives the U.S. Court of Appeals for the Fifth Circuit the rare opportunity to weigh in on—and potentially make significant pro-management changes to—a process that some employer advocates have criticized as inefficient and expensive for companies to litigate.
Courts generally apply a lenient standard in the first step of the process to decide whether workers are similar enough to each other to join a collective action. Once the action is “conditionally certified,” notices are sent to workers inviting them to join the collective. After the parties have developed more evidence, courts apply a heightened standard for considering if the workers are sufficiently “similarly situated” to proceed as a group. …
The two-stage certification process for collective actions was first used by a New Jersey federal court in Lusardi v. Xerox, an age discrimination case from 1987.
Unlike the case at the Fifth Circuit, workers typically file for conditional certification relatively soon after suing the company, before the parties have developed evidence, said Jeffrey Ruzal, an attorney who represents employers for Epstein Becker & Green. Courts then use “almost a rubber-stamp approach” on that first step, often approving collectives based on declarations from the workers, he said.
Conditional certification boosts workers’ leverage in settlement talks, Ruzal said. In addition, the notices that are sent out to potential collective members can be disruptive from an employee-relations perspective, he said.