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How Remote Work May Change W&H Group Actions


April 28, 2022

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.”

Read How Remote Work May Change W&H Group Actions.