SCOTUS Preview Part II: Dividing And Conquering Workers

The following is the first in a multi-part series on the Supreme Court term that begins this Monday. Part I of the series is here.

Ordinary workers and consumers stand on a profoundly uneven playing field when they have to bring well-moneyed corporations to court. While major companies can employ armies of lawyers to protect their interests, middle class Americans rarely have the funds to hire even a single attorney who possesses the same credentials and experience as a major law firm’s army. Indeed, an ordinary family that has just been cheated out of a few hundred or thousand dollars may quickly discover that the cost of hiring any lawyer to recover that money exceeds what they are likely to recover if they win their lawsuit.

For this reason, the law often allows multiple plaintiffs who have suffered similar injuries from the same company to unite together in order to provide a unified front against wealthy corporations. The most common example of this strength in numbers is a class action lawsuit. While few lawyers would be eager to represent a consumer who lost $1000 because of a company’s defective product, many of the best lawyers will eagerly represent a class of tens of thousands of plaintiffs who all suffered the same relatively low-dollar injury. These lawyers normally work on a contingency fee, meaning that they are paid a percentage of the class of plaintiffs’ total winnings — so the bigger the money at stake, the more equal the fight between the plaintiffs’ lawyers and the defendant’s army.

Last year, however, the Supreme Court enabled companies to force consumers to sign away their ability to bring class actions as a condition of receiving a cell phone or a credit card or potentially any other good or service. As a result, it is likely that consumer class actions will eventually become nearly nonexistent, and consumers will lose one of their most important tools in leveling the playing field between them and big business.

This term, the Supreme Court could strike a similar blow against workers. Many federal worker protection laws, including laws guaranteeing a minimum wage, overtime pay and laws preventing discrimination against women and older workers, permit something known as a “collective action” suit. These lawsuits, which are similar to class actions, allow multiple workers who have been underpaid or otherwise mistreated by their employers to join together under a single suit, thus giving them the same strength in numbers that class action plaintiffs enjoy. Yet in Genesis HealthCare Corp. v. Symczyk, the justices could give corporate America a cheap and easy escape valve every time an employer is subject to such a suit.

Collective action suits work in multiple phases. Early on, a single worker must step forward and charge the company with violating federal worker protection law. At a later stage, the law then allows other workers to be joined to the same suit to form the collective action. What happened in Symczyk is that during the intermediate phase of this lawsuit — after the single worker stepped forward but before the other workers could join the suit — the defendant offered to buy off the single worker while giving nothing to the others. Worse, the corporate defendant claims that, because they offered “complete relief” to the single worker, the law requires the worker to take it even if that will kill the collective action suits benefiting all the other workers.

So, the company in Symczyk wants to be able to pick off plaintiffs one at a time, before a collective action can fully form, and thus strip their employees of their ability to bring a collective action in the first place. If the Supreme Court gives the company this power, it will effectively destroy workers’ ability to join collectively against any company smart enough to pay off as few as one of them.

In light of the conservative justices’ recent decision against class actions, workers have every reason to be pessimistic about this outcome of this case.