When there is a willful violation to the Fair Credit Reporting Act (”FCRA”) consumers can recover either actual damages sustained by the consumer or statutory damages of no less than $100 and not more than $1000. (Punitive damages and attorney fees also are available).  There has been a trend in the district courts examining whether plaintiffs must prove that they suffered actual damage in order to recover statutory damages. Since 2007 several Circuits have reviewed this argument and each has explained that the provision for statutory damages does not require a showing of “actual damages.” The Eleventh Circuit is the most recent to weigh in on this question in Santos v. Healthcare Revenue Recovery Grp., and agrees with its sister Circuits.
Continue Reading 11th Circuit Reaffirms FCRA Statutory Damages Available Even in the Absence of Actual Damages

On December 6, 2023, the US Supreme Court heard arguments for Muldrow v. City of St. Louis, which may have significant implications for discrimination cases under Title VII of the Civil Rights Act. Specifically, the Supreme Court in this case could clarify whether Title VII of the Civil Rights Act requires a clear showing of significant disadvantage or tangible harm to have an actionable claim.
Continue Reading The Potential Impacts of Muldrow v. City of St. Louis On The Limits of Workplace Discrimination Allegations

On August 29, 2023, the California Court of Appeal issued a new opinion that, once again, changes how parties litigate and settle claims brought under California’s Private Attorneys’ General Act (“PAGA”). See Robert Lacour v. Marshalls of California, LLC, et al., 94 Cal.App.5th 1172, 313 Cal.Rptr.3d 77.
Continue Reading California Court of Appeal Reminds Parties that a Plaintiff’s Pre-Litigation Notice to the LWDA Controls the Scope of PAGA Settlements

On June 14, 2023, Texas Governor Greg Abbott signed HB 2127, the Texas Regulatory Consistency Act (“TRCA”), into law. Once the TRCA goes into effect on September 1, 2023, it will preclude all municipalities and counties in Texas from adopting or enforcing ordinances regulating conduct with respect to certain subject matters, including labor.
Continue Reading Texas Legislation Provides Employers Regulatory Uniformity

California employers: take notice. On July 24, 2023, the Office of Administrative Law approved changes to the Fair Employment and Housing Act (FEHA) regulations governing how California employers can use and consider criminal history in employment decisions. These new changes, modifying Cal. Code Regs. Tit. 2, § 11017.1, go into effect on October 1, 2023.
Continue Reading California Employers: Updated Regulations for Use of Criminal History in Hiring Decisions Go into Effect October 1, 2023

In Harris et. al. v. Medical Transportation Management, Inc. et. al., the D.C. Circuit Court of Appeals held that a putative class cannot be certified as an “issue” class under Rule 23(c)(4) without also satisfying the requirements in Rule 23(a) and (b). This ruling is important because it prohibits putative classes from using the “issue” class mechanism of Rule 23(c)(4) to skirt the important procedural requirements in Rule 23(a) and (b) that are meant to protect both the litigants and absent parties. The court also encouraged the use of the partial summary judgment mechanism, rather than Rule 23(c)(4), to resolve discrete legal issues common to many class members.
Continue Reading D.C. Circuit Requires Compliance with Rules 23(a) and (b) to Certify Rule 23(c)(4) “Issue” Class Actions

While the intent of Title III of the Americans with Disabilities Act was to improve equality of access to goods and services offered by places of public accommodation, the Plaintiffs’ bar has seized on the law to recruit serial litigants—also known as “professional plaintiffs” or “paid testers”—to repeatedly sue businesses for minor, technical violations without actually seeking to purchase anything at all.
Continue Reading Courts Weigh in on Whether Serial Litigants and ADA Testers Are Eligible to Bring ADA Cases

Last week, the Ninth Circuit issued an opinion in Sharp v. S&S Activewear, L.L.C. where it confirmed that music in the workplace can form the basis of a Title VII sex harassment claim even when it is (1) not directed at any particular individual employee, and (2) offends both female and male employees.
Continue Reading Ninth Circuit Says Music in the Workplace Can Form Basis for Harassment Claim Under Title VII

On May 19, 2023, the United States Court of Appeals for the Sixth Circuit became the second circuit court to reject a familiar two-step certification procedure for collective actions under the Fair Labor Standards Act (FLSA). In Clark v. A&L Home Care and Training Center, LLC, the court held that FLSA plaintiffs who seek to represent other employees in a collective action must demonstrate a “strong likelihood” that other employees they seek to represent are “similarly situated” to the lead plaintiffs.
Continue Reading The Sixth Circuit Creates a New FLSA Certification Process

As discussed in prior blog posts, here, here, and here, pay equity is a hot topic for employee retention and compliance. This principle of equal pay for equal work has been mandated since the Equal Pay Act of 1963 and reiterated in Title VII of the Civil Rights Act of 1964. More recently, legislators at the federal, state, and local level have increased their focus on pay equity and pay transparency initiatives.
Continue Reading Pay Equity Claims Are on the Rise – How Are Courts Interpreting the Differences in State and Federal Laws?