Written by: David Seligman, Attorney, Towards Justice
When many of us think of “class actions,” we think of the class action notices we receive in the mail and frequently ignore. But the right to participate in class or collective litigation is a critical tool of social and economic justice, and essential to workers (and immigrant workers in particular) seeking to protect themselves against wage theft.
There should be no dispute that workers must be paid the wages they’re due, including minimum wages and overtime premiums. Unfortunately, on its own, the right to lawful wages is no more than words on a page. Because workers frequently do not understand their rights, or increasingly because they fear the consequences of coming forward to assert them, employers often ignore these protections (or push their limits) without ever being held accountable to those they harm.
This chronic underenforcement of local, state, and federal wage-and-hour protections harms workers, law-abiding employers, and the marketplace generally. And it creates an incentive for employers to seek out and hire the most vulnerable and least sophisticated workers, who they can frequently abuse with impunity.
Towards Justice works to offset the enforcement gap through its Access to Justice and Impact Litigation programs. The Access to Justice program seeks to connect workers victimized by wage theft with attorneys and navigators who might be able to help them recover their lost wages. Meanwhile, the Impact Litigation program is dedicated to bringing access to justice even for those who are too scared or confused to come forward. In this quest, the most critical legal tool available to Towards Justice’s Impact Litigation clients is the class action.
Perhaps no case is more illustrative of the potency of the class action device than the forced labor case that Towards Justice and its co-counsel are helping a group of former detainees of a private immigrant detention facility to bring against the corporation that runs that facility and that, as alleged by the detainees, profits off of the free and largely-free labor of its captive workforce. The group of people harmed by the company’s policies numbers in the tens of thousands, with many of those spread out across the globe after having been detained by the company and then forcibly removed from the country.
Without the class action, only a tiny percentage of these people could access justice. Even those who understood that the laws of the United States protect them from being forced to labor by the private company detaining them under a contract with the United States would have to have the courage to assert their rights against that company. And even then, they would have to find lawyers to represent them in their individual cases. That’s all extraordinarily unlikely.
But through the class action device, a small group of former detainees has been able to represent tens of thousands of current and former employees seeking damages from the company. Even those who are too scared, too distant, or too impoverished to come forward individually will be able to access justice.
Class actions have long been an important tool for workers seeking to protect their rights. But they have taken on extra importance over the past few months. Immigrants, both documented and undocumented, fear the consequences of bringing claims against their employers (or even just complaining to them). Because of the fear–and in some cases, real danger–of being subject to immigration enforcement, many workers are willing to suffer in silence. Class actions allow one or two of their co-workers to stand up on their behalf.
And yet, like many other worker protections, class actions are under attack. Perhaps most notably, many employers now force their workers to sign arbitration clauses that include class-action bans. Those bans have been used to squelch thousands of class actions since the Supreme Court first approved of them in a 5-4 decision from 2011.
Next term, the U.S. Supreme Court will decide whether those bans violate the National Labor Relations Act, which protects workers’ right to engage in concerted conduct. While on its face, that case may appear to involve abstract and technical legal concepts, its outcome will have far-reaching implications across the American labor market, including for the thousands of workers in Denver every year who are victimized by wage theft.
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