Duane Morris Takeaways: Guest blogger Jonathan A. Segal – one of the deans of the employment bar in the United States – offers his ruminations on the challenges that employers face in class action litigation.
I recently attended an employment law webinar. It got me thinking about employers and the challenge of dealing with workplace class action litigation.
At one point, when discussing how to minimize exposure to discrimination claims, a seminar speaker opined there are three words to keep in mind at all times: “Consistency, Consistency and Consistency.”
When it comes to performance management, if employers treat employees consistently when the circumstances are the same or substantially similar, they can mitigate exposure to individual discrimination claims. The consistency ensures that helpful comparators exist, which employers can use to defend an alleged employment discrimination claim. Of course, and as important, the consistency here is critical to a strong workplace culture.
However, consistency is not always desirable. Huh? Stay with me.
Rule 23 of the Federal Rules of Civil Procedure 23 provides:
- Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
- the class is so numerous that joinder of all members is impracticable;
- there are questions of law or fact common to the class;
- the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
- the representative parties will fairly and adequately protect the interests of the class.
As is evident, consistency may help satisfy the second requirement relative to common issues of fact or law. The U.S. Supreme Court decided that a decade ago in its seminal ruling in Wal-Mart Stores, In. v. Dukes, 564 U.S. 338 (2011).
Arguably – and we certainly see it in the courtroom in the manner of arguments by Plaintiff’s counsel – per se rules that are created to minimize any exposure to discrimination claims may increase the employer’s exposure to class claims because of the commonality they create. But one example suffices — automatic termination of employees after they have been on leave for a specified period of time.
Ralph Waldo Emerson once said that “Foolish consistency is the hobgoblin of little minds.” Let me say this with a bit more civility. While consistency often is desirable, there are times when consistency hurts rather than helps. The key is to know when consistency is desirable and when it is, well, anything but optimal.
Over the next year, I will blog about examples of employment practices/rules that create commonality that have been the basis for class action attacks. In these blogs, I also will talk about alternative approaches that help mitigate exposure to both individual and class action claims.