18th Annual Workplace Class Action Report - 2022 Edition

602 Annual Workplace Class Action Litigation Report: 2022 Edition fund out of debt. The Third Circuit reasoned that the citizens of the Virgin Islands with a population of 106,405 simply could not pay the necessary billions and it opined that the cure for the GERS’ chronic underfunding rested with the legislature and not the judiciary. In sum, the Third Circuit’s ruling preserved the District Court’s award of $18.9 million in principal, $6.1 million in interest and fees, and what would be additional millions in enhancements for the GERS. For these reasons, the Third Circuit affirmed in part, vacated in part, and remanded the judgment of the District Court. Hernandez, et al. v. Stewart , 2021 U.S. Dist. LEXIS 37882 (E.D. Wash. March 1, 2021). Plaintiffs, an agricultural worker and a labor organization, filed a class action alleging that Defendants arbitrarily and capriciously certified prevailing wage rates based on the 2019 Agricultural Peak Employment Wage and Practice Survey ("the survey") that did not accurately reflect the wages of agricultural workers in Washington. Id . at *2-3. Plaintiffs requested a preliminary injunction: (i) ordering Defendants to require all H-2A employers in harvest tasks for which no piece-rate was found to pay the certified piece-rate based on the 2018 prevailing wage survey, plus 5%; and (ii) ordering Defendants to require the Employment Security Department (“ESD”) to eliminate the "guaranteed wage" concept from the 2020 survey and resurvey the responses gathered to date. Id . at *3. The Court granted the motion. Plaintiffs argued that Defendants’ prevailing wage survey methodology was arbitrary and capricious because Defendants failed to: (i) explain the reason for the change or announce the change; (ii) define the "hourly wage guarantee," making rational application of the methodology impossible; and (iii) consider the resulting elimination of higher piece-rate wages. Id . at *20. Defendants argued that even if the wages were incorrectly calculated, the error would be without harm because recalculating the prevailing wages with all the piece-rate wages with wage guaranteed at or below minimum wage would not change the results, since the calculations would still have the highest number of workers included. However, the Court disagreed. It found that if an employer was required by law to pay a certain wage, a reported wage at or below that threshold should not be considered in the data. The Court further held that Defendants acted arbitrarily and capriciously by not conducting a reliable worker survey to validate the results of the employer survey. The Court also determined that Plaintiffs sufficiently demonstrated that they would be subject to irreparable harm absent the injunction because employers reserve the right to decrease (or increase) workers’ pay if Defendants publish new prevailing wages or if a Court orders a change to the prevailing wages, and would essentially end with domestic workers being pushed out of jobs by H-2A employers. Finally, the Court ruled that the public interest would be best served by the survey accurately reflecting current wage trends. Id . at *34. The Court therefore granted the motion for an injunction and ordered Defendants to return to the prevailing wage rates previously certified from the 2018 survey for all harvest activities. Id . at *36. The Court also ordered Defendants to conduct a new prevailing wage survey and avoid problems contained in the 2019 survey. Moeller v. EEOC, 2021 U.S. Dist. LEXIS 49575 (D.D.C. March 17, 2021) . Plaintiff brought suit alleging that the Equal Employment Opportunity Commission (“EEOC”) violated the Freedom of Information Act(“FOIA”), by withholding certain documents in response to his request for records concerning “experience caps” in employment advertisements. Plaintiff submitted a FOIA request to the EEOC for copies of all documents and communications that addressed, discussed, analyzed, or otherwise related to the legality under the Age Discrimination In Employment Act (“ADEA”) of experience caps, i.e. , a requirement in a job advertisement that specifies that job applicants must have 3 to 7 years of relevant experience. The EEOC moved for summary judgment pursuant to Rule 56. The Court noted that to prevail under Rule 56, the EEOC was required to prove that each document that fell within the class requested either had been produced, was unidentifiable, or was wholly exempt from the FOIA’s inspection requirements. Plaintiff challenged the adequacy of the EEOC’s search. In particular, he argued that the EEOC should not have imposed an arbitrary 10-year timeframe on its search, that the EEOC failed to uncover certain responsive documents, that most of the documents the EEOC did release were irrelevant, and that the EEOC should have more closely adhered to the wording of his request when constructing search terms. The Court concluded that the EEOC failed to meet the initial burden to demonstrate the adequacy of its search. The EEOC’s first search consisted of a single employee, who had been at the EEOC for less than one year at the time of the search, searching his individual email account for responsive documents. After the litigation began, the EEOC supplemented its search with a broader search and identified other offices and officials who might have responsive records. It then searched electronically for responsive documents in those locations, limiting the timeframe to 10 years. The EEOC also suggested particular search terms, including "ADEA and advertising, ad, digital divide, digital technology, job