Our colleague Michael S. Kun at Epstein Becker Green was recently quoted in SHRM, in “Distinctions Among Class, Collective and Representative Actions Make a Difference,” by Allen Smith.
Following is an excerpt:
The terms “class,” “collective” and “representative” actions sometimes are bandied about as though they were the same thing, but they have distinct meanings that employers benefit from understanding. This article, the second in a series, examines the differences among these types of lawsuits and practical ramifications, such as how an employer might seek early resolution, as well as how certification of a class or collective action affects whether an employer’s attorney may speak with plaintiffs.
The class-action process is the one typically used when employees bring claims for alleged violations of state laws, said Mike Kun, an attorney with Epstein Becker Green in Los Angeles. …
A representative action refers to claims like those under California’s Private Attorneys General Act (PAGA), Kun said. PAGA lets an employee stand in the shoes of the attorney general and represent all other employees in litigation, he explained.
Class Action …
There is a heavy burden on the plaintiffs to establish that a class should be certified, Kun said.
“If the employer can succeed in defeating the plaintiffs’ motion for class certification, the case proceeds as to the named plaintiffs alone, rather than on a classwide basis,” he said. So instead of defending a lawsuit involving hundreds or thousands of employees, the company may have to defend the claims of only one or two workers.
“In this way, the class certification hearing is the most significant battle in any class-action proceeding,” Kun explained. “It can be the difference between defending a multimillion-dollar case and one with minimal potential exposure.” …
“Because PAGA representative claims are not formally class actions, plaintiffs do not have to go through the class certification process,” Kun explained. “But that does not mean that they automatically get to proceed to trial on behalf of all employees. We have had success in having the courts strike PAGA representative claims because they would not be manageable.”
If several hundred or thousand employees have to take the stand for a PAGA trial to proceed, tying up a courtroom for a year or more, many judges would find that trial of PAGA representative claims would not be manageable, he said.