Some Cases against Employers begin with One Plaintiff but Most of the Time, Multiple Plaintiffs Will Come Forward

Very often, we’ll get not just one person, but we’ll get several people from the same employer because if an employer isn’t paying one person properly, chances are they’re not paying anybody properly, so a good number of our cases involve multiple plaintiffs.

Most of These Labor Cases Are Heard in Federal Court

Typically when we bring these cases, most of them are brought in federal court under a provision of the United States law called the Fair Labor Standard Act.  It’s an act that was established in 1938.  It allows something called a collective action, which means that we can file the action, and we can join in any other people that choose to bring a claim that worked for the same employer, so early in the case, we try to have the case certified as a collective action.

Cases with Multiple Plaintiffs Are Called Collective Action Cases

What that does is that puts a burden on the employer to give us a list of the names of all of the employees that have worked there for the last number of years.  Then we send them a notice asking them if they want to join into the case because their rights may have been violated as well.

We’ve got a number of those collective action cases currently pending in our office where we sent the notices, and we’ve gotten a lot of people that have joined into a number of our cases.

Collective Action Differs from Class Action Suits

Interviewer: It’s like a mini class action law suit, is that right?

Michael: Yes.  Collective action is a little bit different than a class action.  The burden to get the court to grant collective certification is lower than for us than it is to get the court to grant class action certification. This is because with a class action, it requires a prospective member of the class to actually opt out of the class, so the burden is higher because it affects the rights of more people.

With a collective action, somebody that wants to be a member has to actually opt into the class.

Does a Collective Action Suit Require a Certain Number of Plaintiffs?

Interviewer: What are some of the limits or what are some of the requirements?  How many people does it take to make a collective action or what are the factors involved?

Michael: A collective action can be any number of people.  If we think that there are more employees than just the one or two plaintiffs that we have, we will try to have it certified as a collective action.  If there are 5, or 10, or 50 employees, we’re going to try to get those names and send them notices letting them know that their rights may have been violated, and we’ll send them a form.

Attorney Samuel Will Pursue a Class Action or Collective Action Suit That Offers Relief for His Clients

If they choose to fill out the form, we will add them into the case and proceed with the collective action.  In addition, we could also on the same case move for a class action certification, so it’s a multi-step process that takes place and at Samuel & Stein, we pursue these cases.

We pursue every avenue of relief that we can whether it be collective certification or class action certification, we know all the potential claims out there.  I mentioned spread of hours before.  That’s something that we look for.  We look for minimum wage violations.  We look for violations of something called the Tip Credit.  That’s where an employer takes a percentage of the tips that are meant for the employees.

The Majority of Attorney Samuel’s Clients Feel They Have a Legitimate Claim against a Current or Former Employer

Interviewer: When someone comes to you, wouldn’t they have the incentive to try to make it a collective action?  Do some of your clients want to pursue suits out of revenge or are they truly valid claims when people file them?

Michael: No, typically, most of the times that a plaintiff comes in, they feel that they’ve got a legitimate claim.  If somebody comes in with a bogus claim, we would figure that out pretty quickly, and we would not pursue a claim on their behalf, but that’s something that we generally don’t see.

This is because any plaintiff that comes in, we vet the case and make sure that what they’re telling us matches up with either their pay stubs or it matches up with other plaintiffs from the same case have to say, but it would be very rare that somebody would come in and just make up a claim against an employer.

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