What is the Difference Between a Class and Collective Action?

When a plaintiff brings a representative action on behalf of a potential group of similarly situated individuals they most frequently do so as part of a class action lawsuit.  In a class action, such as for unpaid overtime wages, the plaintiff makes allegations that the harm he or she experienced is not unique and that there are many others who also suffered that same harm.  If the court agrees, notice of the class action will then go out to those similarly situated class members (also known as “putative” class members) advising them of the fact that they are in the purported class.  These members are by default included in the class, unless they take an affirmative step to opt out of the class.  

In the employment context, the Fair Labor Standards Act (“FLSA”) has provided employees with another mechanism to bring a representative action: a collective action. Similar to a class action, a collective action begins with a representative plaintiff (or plaintiffs) who seek bringing claims on behalf of themselves and other similarly situated employees.   Just like a class action, notice of the collective action will go out if the court agrees, making the similarly situated putative collective members advising them of that they’re in the purported collective.  The difference between putative class members and putative collective members is that putative collective members are not by default included in the collective.  Instead, they must make the affirmative step of submitting a consent form to join the collective action in order to be included.  Without doing so, putative collective members are not bound by any judgment, but also cannot collect any proceeds from a settlement or judgment.  

Class and collective actions have very different due process concerns and therefore have varying levels of judicial scrutiny.  When a settlement is reached in a class action, all class members who do not affirmatively opt out of the class are bound by the settlement – meaning they waive their right to bring an individual claim for the claims covered by the settlement unless they opt out.  Thus, there is usually a two-step approval process (preliminary approval and final approval) courts require to ensure the settlement is fair and reasonable to class members. 

By contrast, courts typically only require a one-step approval process to ensure that the settlement is fair and reasonable to class members when a collective action is settlement is reached.  This is because those who do not submit opt-in forms to participate in the settlement do not waive their individual rights to bring claims covered by the settlement.  As such, collective action settlements are typically approved much faster than class action settlements.  

SLG is experienced in bringing both class and collective actions on behalf of workers.  If you have any questions about the differences between class and collective actions, believe you are owed unpaid overtime wages or have any other employment-related concerns, please do not hesitate to call us at (800) 616-4000.

 

YOU EARNED IT, NOW LETS GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY.  Lawyers licensed in states including FL, NY, NJ, and TX.  The choice of a lawyer is an important decision and should not be based on advertisements alone.

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COBRA Notice – Former Employer’s Failure to Follow Strict Notice Requirements Can Lead to Money in Your Pocket

The Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) is federal law that requires an employee to have the ability to continue with their company-provided health insurance following the end of their employment. Following the end of an employee’s employment, if that employee was enrolled in the employer’s health insurance plan and the employer employs more than 20 employees, then the employer is required by law to provide documents to that employee disclosing the parameters of their COBRA insurance coverage.

The notice provided to each employee (or “qualified beneficiary”) must explain the employee’s rights and obligations. Assuming the administrator is not also the employer, the administrator has 14 days after receipt of notice of the “qualifying event” (i.e. termination) to provide this notice to the employee. If the employer is the administrator, then the employer has either 44 days after the qualifying event or 44 days after loss of coverage due to the qualifying event (i.e. if the employer voluntarily keeps an employee on its insurance plan even after termination, then it is 44 days after coverage ends).

The notice provided by the administrator must meet specific requirements. In fact, federal law explains 14 specific requirements that each notice must have to be in compliance. See 29 CFR 2590.606-4. These requirements include explicit details about who is a qualified beneficiary, how to elect coverage, how long continued coverage will last, the cost of the continued coverage, due dates of such payments and other specific required disclosures. Failure to timely distribute COBRA notice or the failure to include these specifics in the COBRA notice can lead to a $110/day per person penalty. In addition, the employer would be required to pay the employee’s attorneys’ fees and costs in addition to these penalties if an employee is successful in their claim.
If you have questions about whether your former employer complied with the federal notice requirements with regards to the COBRA notice you received, please do not hesitate to call us for a free consultation at (800) 616-4000.

YOU EARNED IT, NOW LETS GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY. Lawyers licensed in states including FL, NY, NJ, and TX. The choice of a lawyer is an important decision and should not be based on advertisements alone.
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Families First Coronavirus Response Act (FFCRA): What Workers Need to Know

The coronavirus pandemic, which has caused our economy to come to a grinding halt, has had a drastic impact on our country’s workers.  To help aid workers in their time of need, Congress recently signed the Families First Coronavirus Response Act (“FFCRA”) into law.  The FFCRA provides certain employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.

To qualify for the FFCRA, the employee must work for either a public employer (excluding certain federal employees covered by Title II of the Family and Medical Leave Act) or a private employer with fewer than 500 employees.

For eligible individuals, the FFCRA provides the following relief:

1.Two weeks (up to 80 hours) of paid sick leave (at the greater of 100% of employee’s regular rate of pay or the applicable minimum wage, but not to exceed $511/day, which is $5,110 total) where the employee is unable to work — including remotely — because the employee was quarantined and/or experiencing COVID-19 symptoms and seeking a medical diagnosis, or;

2. Two weeks (up to 80 hours) of paid sick leave (at the greater of 66.67% of employee’s regular rate of pay or 66.67% of the applicable minimum wage, but not to exceed $200/day, which is $2,000 total), because the employee cannot work — including remotely — due to a bona fide need to care for an individual subject to quarantine, or to care for a child whose school or child care provider is closed or unavailable due to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor, and;

3. Up to an additional 10 weeks of paid expanded family and medical leave (at the greater of 66.67% of employee’s regular rate of pay or 66.67% of the applicable minimum wage, but not to exceed $200/day ($12,000 total) because an employee, who has been employed for at least 30 calendar days, is unable to work — including remotely — due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

While provisions one and two apply to all covered employees, provision three only applies to those employees who have worked for at least 30 days.

Interestingly, while an employer may require a doctor’s note to provide such leave, the FFCRA is unclear as to whether the doctor’s note is actually required before providing such leave.  Thus, it’s best to provide the doctor’s note to your employer, if feasible.

If you are in need of leave to take care of yourself or a loved one and your employer does not provide you with this federally mandated leave, you may be entitled to damages under federal law.  Shavitz Law Group is here to help. If you have any questions about this new law or other employment-related issues, please do not hesitate to call us at (800) 616-4000.

No Time Records: Why You Don’t Necessarily Need Proof to Claim Your Unpaid Overtime

No proof, no problem: We've got your back.

Many employees hesitate to bring claims for unpaid overtime wages because of a fear that they cannot provide proof that they worked the overtime hours that they claim.  Especially if an employee is salaried, he or she will often only clock in and out for attendance purposes or may not even have to clock in at all.  If they are paid hourly, many employees will work off-the-clock hours with these hours not being reflected in the time records.

Not to fear: The law requires employers to maintain accurate time records for each of their employees.  As such, if there is a dispute about hours worked, an employee’s reasonable recollection about the hours he or she worked will be the basis of any claim for unpaid overtime.  This means that, even without specific proof, an employee can recover for unpaid overtime wages.

Additionally, even in the absence of any time records, in this digital age, we are regularly able to re-create our clients’ hours worked by developing electronic evidence, which includes the time employees logged onto computers or logged off computers, cell phone records, or records of e-mails, etc.   Thus, even in the absence of actual time records, there are regularly other indicators we can develop through discovery with the employer to paint a picture of your typical comings-and-going from work, as well as your pre-shift and post-shift work.

If you have a claim for unpaid overtime wages, please contact us at slg@shavitzlaw.com or at 800-616-4000.  We would be happy to assist you in a free consultation to discuss your employment concerns.

 

YOU EARNED IT, NOW LETS GO GET IT.

Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 800 3rd Ave, Suite 2800, New York, NY.  Lawyers licensed in states including FL, NY, NJ, and TX.  The choice of a lawyer is an important decision and should not be based on advertisements alone.

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Employers Are Required to Protect Your Personal and Biometric Data

Employers Are Required to Protect Your Personal and Biometric DataData collection is big business.  Large employers are able to obtain and sell significant amounts of data about their workers.  While many states are behind, Illinois and California now allow for private rights of actions against employers who fail to provide their employees with certain disclosures before they use or sell the personal data of their workers.

In Illinois, the law pertains to the sharing of biometric information such as fingerprints, which employers can easily get from timekeeping systems without legal disclosures to the workers.   California goes even further, requiring legal disclosures before collecting certain personal information, including, but not limited to, biometric information.  In California, businesses with more than $25 million in gross revenues or businesses that possess and sell large amounts of personal information must (i) provide notice to their employees that information about them is being collected; (ii) advise whether that information is sold/disclosed and to whom; and (iii) provide the ability to opt-out of this collection of data, access this data, and request deletion of the data.

If you work in Illinois or California and your company collected your personal information without providing the appropriate disclosures, you may be entitled to compensation.  Call us at the Shavitz Law Group and let us help make things right with a free, no-obligation review of your circumstances and a consultation regarding your rights.

YOU EARNED IT, NOW LETS GO GET IT.

 

 

 

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Gregg Shavitz, Shavitz Law Group, 951 Yamato Rd Ste 285, Boca Raton, FL and 830 3rd Ave, Floor 5, New York, NY.
Lawyers licensed in states including FL, NY, NJ, and TX.  The choice of a lawyer is an important decision and should not
be based on advertisements alone.