Class Action Trends Report, Spring 2018

By Lewis, Jackson | Labor Law Journal, Summer 2018 | Go to article overview

Class Action Trends Report, Spring 2018


Lewis, Jackson, Labor Law Journal


A Word From the Authors

With spring upon us, we look to renewal. So we've turned the soil in this issue of the Jackson Lewis Class Action Trends Report to survey several budding trends, sowed in our modern technological age, that have proven fertile ground for class litigation.

Wage-hour claims and discrimination suits have vexed employers for decades and, over the years, employers have developed compliance and defense strategies to shield them from liability as best they can. However, even the most sophisticated employers may find themselves unaware of, and ill-prepared for, the cutting-edge issues and claims we discuss in these pages. Technology offers efficiency, convenience, and previously unimagined ways of communicating and doing business. But these modern tools have also presented new compliance challenges, legal risks, and potent means of reaching potential class members and spreading litigation trends.

Online hiring assessments and time-tracking with biometric scanning, for example, are undoubtedly useful tools for employers in recruiting and managing their workforce. But they raise compliance obligations and present potential legal traps. As these tools go mainstream, we can expect legislative measures to regulate their use to spread like proverbial weeds - giving rise to new obligations and setting additional traps.

Moreover, as our brick-and-mortar economy increasingly moves into cyberspace, the legal requirements of operating a business often carry over in unanticipated ways. Businesses have found-frequently after being served with a lawsuit - that the Americans with Disabilities Act (ADA) and its state counterparts mandate that websites be fully accessible by customers of all abilities. Class actions targeting technical violations of this requirement are in full bloom.

Of course, those "analog" discrimination and wage-hour lawsuits aren't going away anytime soon. Indeed, with social media - that most transformational and sweeping of modern advancements - such litigation can go viral. The #MeToo movement has powerfully illustrated that social media's potency can rapidly shift the cultural terrain, and the legal landscape along with it. Heightened consciousness can plant the seeds of a litigation thicket.

Computer-age class action traps

Social media and other technological developments have altered just about every aspect of modern life. That includes employment law and class action litigation. Developments over the past decade have changed the way employers do business. These changes have produced new causes of action, new theories of liability under old causes of action, and new methods of litigating class claims.

In this issue of the Jackson Lewis Class Action Trends Report, we look at some novel class-action employment traps. We survey some of the biggest litigation risks that have arisen in this digital age, including the #MeToo movement, website accessibility for individuals with disabilities, and the growing use and value of employee biometric information. For each of these traps and more, we also discuss strategies employers can utilize to prevent falling into them.

#MeToo: A viral movement, a wave of claims

October 2017 marked a turning point for sexual harassment. On October 4, the Equal Employment Opportunity Commission (EEOC) announced the launch of new harassment-prevention trainings for employers, focused less on "legal definitions and standards for liability" and more on "respect" and "workplace civility." This suggested a new "broken windows" approach to combatting harassment. Indeed, "workplace incivility often acts as a 'gateway drug' to workplace harassment," EEOC Commissioner Chai Feldblum said. The EEOC's new offerings aim to stop such conduct, she added, "before it ever rises to the level of illegal harassment." The news generated little buzz at the time.

The next day, The New York Times exposed film producer Harvey Weinstein as a serial sexual harasser going back decades. …

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