Last week the U.S. House of Representatives passed a bill called the “Fairness in Class Action Litigation Act of 2017.” This bill would significantly weaken workers’ ability to band together and bring class actions. Some have argued that it would essentially eliminate certain types of class actions.
Class actions are a far more effective way to hold companies fully accountable for widespread violations of workers’ rights than individual actions. When companies commit widespread violations of workers’ rights, individual cases are inadequate to fix the problem. In an individual case, the company can compensate the one victim who sued, claim that the victim’s case is an isolated incident, and continue to engage in widespread violations of workers’ rights. Class actions seek compensation for all workers that a company harmed through its systemic or widespread rights violations. Class actions, unlike individual actions, can force companies to make systemic changes to prevent future violations of workers’ rights.
The bill that the House passed does many things to undermine workers’ ability to bring class actions. One of the most egregious provisions of the bill relates to the burden on classes of workers to prove that they basically all suffered identical harms in order to pursue a class action. The bill says that the workers who represent the class must have suffered the “same type and scope of injury” as all workers in the proposed class. This is a huge barrier to class actions.
To illustrate how huge this barrier is, consider a case where a company had a common practice of paying women less than men for the same work. A class action against this company would be extremely difficult because each woman discriminated against probably would have lost a different amount of money as a result of the company’s discriminatory practice. As such, the female workers who were not cheated out of the same amount of money as the class representatives could not be included in the class. This would, in turn, ensure that the class is small and the class action would be more like an individual action that has far less potential to force the company to change its discriminatory practices.