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By Liz Watson, Senior Advisor, National Women's Law Center
Cross-Posted from NWLC's blog, Womenstake

Today the Supreme Court is hearing argument in Genesis HealthCare Corp. v. Symczyk. In this case, the plaintiff, Laura Symczyk, alleges that her nursing home employer violated the Fair Labor Standards Act by deducting a 30-minute lunch break from her wages and the wages of her coworkers, regardless of whether they worked during their scheduled breaks.

The question before the Court is whether an employer’s offer of settlement to the named plaintiff in a class action alleging company-wide violations of the Fair Labor Standards Act (FLSA) can end the case, when the employer makes the settlement offer before any of the named plaintiff’s coworkers have a meaningful opportunity to join the case. If the Court’s answer to this question is yes, then employers will have the power to shut down class actions challenging wage and hour violations before they begin, leaving other affected employees without the chance to have their claims heard.

Such a holding would undermine the intent of the FLSA which was to protect vulnerable workers from exploitation and abuse. When Congress passed this landmark legislation in 1938 it provided for “collective actions” through which groups of workers could band together to enforce their rights.

Workers in the nursing home industry, like those on whose behalf Ms. Symczyk brought suit, are exactly the type of vulnerable workers the FLSA was designed to protect. They are predominantly women earning near poverty-level wages. Eight of the ten most common occupations in nursing care facilities pay median hourly wages between $9.23 and $11.42  and women make up the vast majority of workers in the most common occupations in nursing homes. The nursing home industry is only one of the many low-wage industries dominated by low-wage women workers; in fact, women make up nearly two-thirds of those earning minimum wage or less. Wage and hour violations are rampant in the nursing home industry (PDF), as they are in many of the industries employing low-wage workers.

The National Women’s Law Center and the Service Employees International Union filed an amicus brief in this case, together with several other organizations representing the interests of low-wage women workers and health care consumers. The brief argues that what hangs in the balance is whether workers will have a fair shot at banding together to vindicate their rights when they are subject to unlawful pay practices that violate the FLSA or the Equal Pay Act (EPA), which relies on the same collective action mechanism as the FLSA.

If the Court holds that an employer can moot an action by making an offer to the named plaintiff before any other plaintiffs have the chance to join the suit, workers’ ability to proceed as a group will be severely compromised. For many low-wage workers the only avenue for redress will be to bring an individual claim, which means that despite having limited time and limited means, each would have to hire a lawyer on his or her own and invest substantial time and effort in prosecuting the case. The efficiencies that the collective action was designed to promote for plaintiffs, defendants, and the courts, will be lost. In addition, workers bringing a lawsuit on their own have much more reason to fear retaliation than workers proceeding together as a group.

If the Court decides in favor of the nursing home employer, in future cases alleging company-wide wage and hour violations or pay discrimination, employers will have a strong incentive to make an early settlement offer to each individual plaintiff in succession. Employers will try to pick off the plaintiffs one by one, until plaintiffs’ counsel’s resources are exhausted and the lawsuit dies an untimely death without the underlying claim ever being heard on the merits.

Collective suits lie at the core of enforcement of the FLSA and the EPA; Congress did not intend for defendants to be able to easily game their way out of these cases by picking off a lead plaintiff. The Supreme Court should hold that defendants cannot end a collective action by offering to settle with one plaintiff before others have had an opportunity to join the case. To learn more about what’s at stake for low-wage women workers in this case, check out this factsheet from the Center, summarizing the arguments made in our brief to the Court.

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