Today, the Center filed a friend of the Court brief in Genesis Healthcare Corp. v. Symczyk. This important case will decide whether a defendant in a class action brought under the Fair Labor Standards Act (FLSA)—called a “collective action” under that statute—can end the case by offering the lead plaintiff a settlement for her own claims before any other plaintiffs have had a meaningful opportunity to join the lawsuit. The case involves a suit brought under the FLSA on behalf of nursing home workers, who are predominantly women earning near poverty-level wages.

The FLSA is a landmark law passed during the Great Depression that is designed to protect workers from oppressive wage and hour conditions. The Equal Pay Act (EPA), which outlaws pay discrimination based upon gender, was passed as an amendment to the FLSA in 1963. Both the FLSA and the EPA allow for “collective actions,” where one employee can sue on behalf of herself and other employees whose rights are being violated in the same way. In a collective action, the other employees must “opt in” to participate in the case. The Center believes that collective actions are vital to enforce the FLSA and the EPA and to protect low-wage working women, including women in the nursing home industry.

Nursing home workers are precisely the kind of workers who are especially vulnerable to exploitation and whom the FLSA was designed to protect. The Department of Labor reports that an astounding 45% of nursing homes were noncompliant with FLSA requirements in 2004, and 60% were noncompliant in 2000. The nursing care facilities industry is also characterized by low wages and occupational gender segregation. 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 huge majority of workers in the most common occupations in nursing homes.

Low wages in the nursing home industry mirror those of other industries and are especially common in female-dominated occupations.  Although women make up less than half of the overall American workforce, they account for about two-thirds of those making minimum wage or less.

Collective actions are often the only means by which low-wage workers can enforce the FLSA or the EPA. When nursing home workers and other low-wage women workers are victims of wage theft, their low wages and the low stakes of their individual claims often make it difficult for them to retain legal assistance. The risk of employer retaliation for lodging a complaint is also especially threatening to low-wage workers, who are less likely to have a financial cushion in the event of job loss. Additionally, women are often unaware they face pay discrimination because they don’t know how much their co-workers earn, especially when employer policies forbid discussion of pay. Collective actions make it possible for low-wage workers to find legal representation, lessen the likelihood that any individual employee will be targeted for retaliation, and can provide crucial notice and information allowing workers to recognize and challenge pay discrimination.

The Center strongly believes that collective suits lie at the core of enforcement of the FLSA and the EPA and that 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.

The Court will hear argument on December 3, 2012. Stay tuned for updates!