Developments in Equal Pay Litigation

© 2021 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 19 Two Frameworks For Aggregate Litigation Of Equal Pay Claims Private aggregate litigation under the federal EPA is governed by the judicially-created opt-in procedures of the Fair Labor Standards Act, while private litigants suing under Title VII must meet the class certification requirements of Rule 23 of the Federal Rules of Civil Procedure. Those are starkly different procedures that can and often do lead to significantly different consequences and outcomes for employers. CLASS ACTIONS VS COLLECTIVE ACTIONS Governed by Rule 23 of the Federal Rules of Civil Procedure or analogous state laws VS Governed by 29 U.S.C. § 216(b) Applies to numerous areas of law and can relate to actions asserted under federal or state statutes (but not the federal EPA) VS Applies only to actions filed under the Fair Labor Standards Act (“FLSA”), Equal Pay Act (“EPA”), and Age Discrimination in Employment Act (“ADEA”) Generally a more rigorous and challenging certification process in which plaintiffs must satisfy several criteria to support their class action allegations VS Certification requirements are often not as rigorous as those of a class action—§ 216(b) only requires that collective action members be “similarly situated” Certification requirements under Rule 23(a) include: (1) Numerosity; (2) Commonality; (3) Typicality; (4) Adequacy of Representation VS Most courts have adopted a two-tiered analysis in determining collective certification wherein step 1 is a lenient, pre-discovery analysis, and step 2 is a more demanding, post-discovery determination Rule 23 class action members are “in” unless they affirmatively “opt out,” which tends to lead to higher participation as compared to collective actions VS § 216(b) requires members of the collective action to affirmatively opt in by filing an individual consent to join, which tends to lead to lower participation as compared to class actions