Remote work challenges the framework of class and collective actions, raising tactical questions about jurisdiction and whether a work-from-home employee’s geographical location may affect their participation in such suits, attorneys say.

Many remote workers now do their jobs in a different state from the one they used to work in, having abandoned daily commutes to their offices in New York City, Washington, D.C., or Boston to stay at home in surrounding states.

The rising prevalence of remote work raises logistical questions for wage and hour class and collective actions, attorneys say.

This situation may amplify the jurisdictional questions raised by the 2017 U.S. Supreme Court decision in Bristol-Myers Squibb Co. v. Superior Court where the justices said individuals outside of California who claimed they were injured by a drugmaker’s product could not join a class action filed in the Golden State because they had no connection to that jurisdiction.

In August, the Sixth and Eighth Circuits ruled that individuals may not join a collective action filed in one state by adding their own allegations concerning a defendant’s violations in a different state.

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Shifting Jurisdictional Strategy

As long as remote workers maintain a connection to their particular office, they will be in a better position when it comes to specific jurisdiction in a collective action, said Christine Webber, a partner and co-chair of the civil rights and employment practice group with worker-side firm Cohen Milstein Sellers & Toll PLLC.

“I think that the people working remotely who still have a connection to a particular office have a pretty good argument that there’s still jurisdiction over their [Fair Labor Standards Act] violations,” she said. “It’s not illegal that somebody worked over 40 hours a week. It’s illegal not to pay them overtime for it and that payroll processing and everything was happening at the office where they used to go in physically, presumably.”

Not every aspect of a claim needs to have happened in the same physical location, she said.

A Class-Collective Divide

The differences between class and collective action mechanisms may also shape group litigation involving remote workers, attorneys said.

FLSA collective actions require members to affirmatively join the suit under 29 U.S.C. § 216(b).

By contrast, for class actions brought under Rule 23 of the Federal Rules of Civil Procedure, class members must opt out, and the named plaintiffs are typically viewed as the parties to the suit.

That distinction may come into play in courts that say they must have personal jurisdiction over opt-in plaintiffs to a collective action, Webber said.

“Then, I would point out … courts have tended to go differently for Rule 23, where you’re looking at the jurisdiction over the named plaintiff, not every individual class member,” she said.

Similarly Situated at Home

Webber said she has no doubt that you can have workers who are similarly situated who are not all in the same physical space because she has represented workers such as visiting nurses who do home health care visits.

The nurses may check in in the morning to get their assignments at the same office, but then they go from patient residence to patient residence, Webber said. It’s the same with drivers for ride-hailing services and Amazon drivers, she said.

“You can still show they’re subject to the same terms and conditions, same work rules, same policies and practices and same job duties, etc., such that a class action is appropriate,” she said. “I don’t think that is or should be a concern at all in terms of class certification or collective action certification.”

A D.C. federal judge shot down an attempt by the Justice Department to throw out the bulk of a proposed class action by more than a dozen women alleging they were systematically driven out of the FBI agent training program and subjected to sexist double standards.

In a one-page order filed Friday, U.S. District Judge Jia M. Cobb denied the federal government’s motion for partial dismissal of a proposed class action alleging the law enforcement agency allowed rampant bias in its trainee program in violation of Title VII of the Civil Rights Act.

The 17 plaintiffs, some proceeding pseudonymously, had claimed that the bureau cracked down on female trainees but let men off the hook for mistakes it cited to block most of them from becoming full agents.

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The current and former FBI employees are represented by Joseph M. Sellers and Christine E. Webber of Cohen Milstein Sellers & Toll PLLC and by David J. Shaffer.

A proposal from the conservative American Legislative Exchange Council to block state pension funds from selecting investments based on environmental, social and governance factors is being closely watched by benefits attorneys who say it echoes Trump-era regulations that evinced antipathy toward ESG investing.

The model policy, unveiled Wednesday, could give state legislatures a template for implementing similar restrictions on ESG investments that were proposed under the Trump administration in late 2020, though ALEC envisions restricting state-run retirement plans instead of employer sponsored ones. President Joe Biden’s Department of Labor has since backed off those rules.

The proposal’s main focus, and a major idea behind the Trump-era DOL rule, has to do with requiring fiduciaries of a retirement plan to explain why they’re choosing ESG-based investments over other comparable options.

In particular, the proposal would restrict investment by specifying that an option’s performance — not its environmental or social impact — should be the focus when a retirement plan manager is deciding whether it is right for a plan. That was the same process suggested by the Trump-era DOL.

And the ALEC proposal would go even further than Trump’s rule by, for example, expanding the definition of what constitutes a material financial risk to exclude uncertain events far in the future — which might include climate change.

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“To the extent this debate provides any guidance into the best thinking about the pecuniary benefits provided by ESG-type investments, I think, could have some tag-along effects about providing or dissuading fiduciaries from using those types of investments in plans,” said Daniel Sutter, an attorney at Cohen Milstein Sellers & Toll LLP.

“It may just reveal the best thinking on the ESG investment thesis and whether or not, you know, the individuals that spend a lot of their time studying the economic benefits of ESG, whether there’s a strong case that there’s a long-term pecuniary benefit,” he added.

As part of a settlement signed today with the North Carolina Department of Environmental Quality’s Division of Air Quality (DAQ), Chemours has agreed to further limit GenX emissions, conduct additional testing and pay the penalty assessed last year by DAQ.

The agreement will require Chemours to reduce GenX emissions from the Carbon Adsorber Unit in the Vinyl Ethers North manufacturing area to no more than an average of 1.0 pound per month between May and September 2022. Fugitive emissions from the Vinyl Ethers North area are primarily controlled by the Carbon Adsorber Unit which is a separate system from the onsite Thermal Oxidizer.  Chemours’ facility-wide emissions are limited to 23.027 pounds per year under the current air permit.

Cohen Milstein is Interim Co-Lead Counsel in this consolidated environmental toxic tort class action against E.I. DuPont de Nemours Company, and its former wholly-owned subsidiary, The Chemours Company.

Cohen Milstein’s team is led by Theodore J. Leopold, and includes S. Douglas Bunch, and Alison Deich.

Wells Fargo & Co. will pay $32.5 million to resolve litigation by workers who say the banking giant favored its own funds in their 401(k) plan over cheaper and better performing alternatives, settlement papers filed in Minnesota federal court show.

The deal is expected to benefit more than 400,000 people who invested in Wells Fargo target date funds through the company’s $40 billion 401(k) plan. The settlement amount represents 40% of the plan participants’ estimated damages, according to the filing.

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The Wells Fargo plan participants are represented by Cohen Milstein Sellers & Toll PLLC, Zimmerman Reed LLP, and Keller Rohrback LLP. Wells Fargo is represented by Proskauer Rose LLP and Dorsey & Whitney LLP.

Read Wells Fargo Inks $32.5 Million Deal Over Affiliated 401(k) Funds.

A California federal judge certified a class of Facebook advertisers that claim they were deceived about the company’s “potential reach” tool, ruling that parent company Meta Platforms inc. made an unfocused “blunderbuss of objections” to certification that did not hold up to scrutiny.

Tuesday’s order from U.S. District Judge James Donato certified a class of all U.S. residents and incorporated entities that purchased at least one advertisement on Facebook or Instagram through Facebook’s Ads Manager or Power Editor from Aug. 15, 2014, through the present.

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The class is represented by Eric A. Kafka and Geoffrey A. Graber of Cohen Milstein Sellers & Toll PLLC and Charles Reichmann of the Law Offices of Charles Reichmann.

A radiology company and its founders must face a proposed class action alleging they overcharged their employee stock ownership plan in a $163.7 million sale, a Colorado federal judge ruled, saying the company can’t enforce an arbitration agreement because it conflicts with federal benefits law.

U.S. District Judge Regina M. Rodriguez on Thursday said the agreement between Envision Management Holding Inc. and Robert Harrison conflicts with an Employee Retirement Income Security Act provision allowing plan participants to sue fiduciaries to seek relief on behalf of the entire plan. The Federal Arbitration Act permits a court to overrule an arbitration agreement if it blocks a party from being able to bring claims under federal law.

“The arbitration provision is therefore invalid, and the defendant’s motion to compel arbitration is denied,” Judge Rodriguez said.

She pointed to the Seventh Circuit’s September decision in Smith v. Board of Directors of Triad Manufacturing Inc. , a case that she said is “substantively identical” to that of Harrison. In Smith, the court found that the arbitration provision made it impossible for the plaintiff to effectively argue their claims.

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Harrison is represented by Michelle C. Yau, Mary J. Bortscheller and Ryan Wheeler of Cohen Milstein Sellers & Toll PLLC.

An Ohio federal judge on Friday denied Nationwide Mutual Insurance Co.’s bid to toss a proposed class action alleging the company breached its fiduciary duty under the Employee Retirement Income Security Act through the mismanagement of employees’ pension plan.

In a 14-page opinion, U.S. District Judge James L. Graham denied a request by Nationwide Mutual, its subsidiaries and benefit committee members to end the proposed class action alleging they violated ERISA by transferring assets from the pension plan — called the Guaranteed Investment Fund, which is an investment option under Nationwide’s larger savings plan — to a Nationwide Mutual subsidiary that serviced the plan.

The judge held that the most recent rendition of the complaint sufficiently alleges a fiduciary breach by stating “outright” that the defendants favored the economic interests of Nationwide Mutual over plan participants.
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The plan participants are represented by Eric H. Zagrans of the Zagrans Law Firm LLC and Karen Handorf, Michelle C. Yau, Scott M. Lempert and Daniel R. Sutter of Cohen Milstein Sellers & Toll PLLC.

A New Jersey federal judge adopted a special master’s report Tuesday approving two settlements totaling over $23 million to resolve claims that the former Valeant Pharmaceuticals used a “secret network of captive pharmacies” to stifle generic competition, driving up prices for third-party payors.

The approval ends what U.S. District Judge Michael A. Shipp in his memorandum opinion called “lengthy and robust” litigation accusing the drug company of violating the Racketeer Influenced and Corrupt Organizations Act with an alleged scheme to block its drugs from generic competition.

Citgo Petroleum Corp. must face a proposed class action claiming it shortchanges the pensions of certain married retirees by calculating their benefits using outdated lifespan data, according to a Chicago federal court ruling issued Tuesday.

Citgo retirees Leslie Urlaub and Mark Pellegrini are moving forward with claims that the pensions they received from Citgo, which include post-death benefits for their surviving spouses, aren’t the “actuarial equivalent” of a traditional, single-life pension as required by the Employee Retirement Income Security Act. Citgo argued that the statute doesn’t expressly prohibit employers from using unreasonable lifespan data when making these calculations, but the court disagreed, saying it “cannot possibly be the case that ERISA’s actuarial equivalence requirements allow the use of unreasonable mortality assumptions.”

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Urlaub and Pellegrini are represented by Feinberg Jackson Worthman & Wasow LLP, Cohen Milstein Sellers & Toll PLLC, Stris & Maher LLP, and the University of San Diego Law School.