HR 985 Will Burden Wage and Hour Class Action Lawsuits

A bill designed to make it more difficult—if not impossible—to have successful class action lawsuits recently passed the U.S. House of Representatives and is now being considered in the Senate.

The so-called “Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017,” H.R. 985, would upend many legal standards of class action litigation that have been part of our system for decades, all in an effort to do away with class actions.

First, H.R. 985 would heighten the burden on plaintiffs to show that in lawsuits seeking damages or monetary injury, that all Class Members suffered the same type of injury and the same scope of that injury as the named Class representatives. This is significant departure from current law, which requires that common issues “predominate” in the lawsuit over individual issues, and that claims of the named plaintiffs are “typical” for the Class.

A recent decision from the U.S. Supreme Court in 2016 shows how this change could be so important. In Tyson Foods Inc. v. Bouaphakeo, a group of employees at a processing plant run by Tyson Foods sued the company for overtime pay. The plaintiffs argued that it took about 20 minutes for each of them to put on and take off their uniforms and protective equipment, and they were not being paid for that time.

Tyson Foods argued that the case could not be a class action, because each employee spent a different amount of time at the task, and therefore they should all file individual lawsuits. The Supreme Court disagreed, declaring that the most important issue was whether or not all of the employees were entitled to overtime; exactly how much overtime was a secondary issue that could be proven with a representative sample of employees and using statistics.

If H.R. 985 became law, the outcome of class actions similar to the one in Tyson Foods could be very different. Unless all Class Members have the same scope (or amount) of injury, they would have to file individual lawsuits. And if the amount of injury to each consumer is less than $100, very few consumers would chose to file their own lawsuits. So even if a defendant harmed hundreds of thousands of people and took millions of dollars in total, under the new standard of H.R. 985 the defendant could avoid a class action lawsuit.

A second major change the legal system imposed by H.R. 985 would be to require appellate courts to hear appeals of an order granting Class certification. This is very unusual, because typically parties can appeal a case only after there is a final judgment. Currently, appellate courts may hear appeals of courts’ orders before the case is final, assuming the court order is important enough. But the appellate courts get to make that decision. Under H.R. 985, the judgment of appellate judges would be thrown out, and they would be required to hear all appeals of Class certification decisions.

This is important, because appeals take time (often years) to be decided. This would mean that virtually all class actions would take another year or more before they could be finally resolved. As the Leadership Conference on Civil and Human Rights pointed out, “class actions are critical for the enforcement of laws prohibiting discrimination,” and often victims of civil rights abuses cannot wait additional years before getting justice.

What Can I Do to Stop H.R. 985 From Passing?

If you want to see Consumer Rights protected, contact your state’s U.S. Senators today and tell them to vote NO on H.R. 985, the Fairness in Class Action Litigation Act of 2017. Your senators can be reached by calling the Capitol Switchboard at (202) 224-3121 and asking the operator to connect you with their offices.

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