In recent years, a major risk/headache for companies has been class action employment lawsuits, particularly in the area of wage and hour law. Some companies have responded to this risk by requiring their employees and job applicants to sign arbitration agreements (requiring an employee to litigate their claim in arbitration instead of in court) and/or class waivers (in which an employee promises not to be a class representative or to file a lawsuit on behalf of other employees). Usually, arbitration agreements and class waivers are presented to employees/applicants as a "take-it-or-leave-it" proposition, and if they refuse to sign, they may be turned down for employment or fired from an existing job. Thus, an interesting legal question is presented: are class waivers legally valid and enforceable?
This question was recently confronted in a case currently being handled by Riggan Law Firm, LLC, a Missouri employment law firm. In March 2012, Riggan Law Firm, working in connection with Weinhaus & Potashnick, filed a class/collective action lawsuit on behalf of a group of call center representatives against Convergys Corporation for unpaid overtime. Specifically, the lawsuit alleges that customer service representatives ("CSRs") who worked at Convergys' call centers in Hazelwood, Missouri and Arnold, Missouri (both in the St. Louis metropolitan area) spent time working "off-the-clock" without pay on a daily basis before and after their shifts. Specifically, the CSRs claim that they were required to engage in various preparatory activities--such as reading e-mails and logging into and loading various computer programs and applications--to become ready to take calls before the beginning of their paid shifts. The CSRs also allege that they were required to log out of computer applications after completion of their paid shifts. To read a previous blog article about the lawsuit, click here. To read the most recent version of the lawsuit itself, click here.
Convergys filed a motion with the Court seeking to strike the lawsuits class/collective allegations on the basis that the lead/representative Plaintiff Hope Grant, among others, signed class waivers as part of their employment with Convergys. Convergys argued that the class waivers are legally valid and should prevent the lawsuit from going forward on a class/collective basis.
In addition to the pending class/collective action federal court lawsuit for unpaid wages, there is also a pending case before the National Labor Relations Board("NLRB") to decide whether Convergys violated the law by requiring employees to sign class waivers and by taking steps to enforce the waivers in the federal court wage lawsuit. On October 30, 2012, Arthur Amchan, the Administrative Law Judge ("ALJ") for the NLRB case, issued an Order finding that Convergys' actions in implementing and enforcing the class waivers violated the National Labor Relations Act ("NLRA"). According to the ALJ's Order, by implementing and enforcing class waivers, Convergys interfered with, restrained, and/or coerced employees in the exercise of the rights guaranteed to them by the NLRA. The ALJ found that a waiver obtained by the employer as a condition of employment" is a violation of the NLRA. To read a copy of the ALJ's Order, click here.
This decision is important in that it protect employees from waiving valuable rights in connection with their employment, especially when such a waiver of rights is required as a condition of employment. If you are asked to sign such a class waiver, your employer is likely violating the law.