Frequently Asked Questions
Employment that is at-will can be terminated at any time, for any legal reason. Most employment relationships are at will. A small number of employees have contracts stating that they can only be fired for cause – these are generally the only individuals who are not employed at will. But at will employment cannot be terminated for an illegal reason.
Employers are allowed to fire people for bad, unfair, and wrong reasons and no reason at all. Even if you are fired for something you did not do, the termination is not necessarily “wrongful” under the law. To have a legal claim, an employer must make an adverse employment decision – fires, disciplines, or otherwise treats an employee differently – for an illegal reason. Some reasons are perfectly legal, such as poor performance, personality conflicts or preference for family members. Other reasons are not legal. A person cannot be subject to an adverse employment decision because of their race, national origin, color, age, gender, disability, or religion, complaints about unlawful acts, or use of health insurance benefits. If you want to know whether your termination was illegal, please contact us.
A class action is a lawsuit where many people combine their similar complaints. This allows a single judge to hear all the concerns at the same time, and potentially resolve all the claims together. If the court agrees to treat the case a class action, all class members will share in any recovery.
In a class action, one person, called the “Lead Plaintiff,” “Named Plaintiff” or “Class Representative” represents a group of others who suffered similar harm. Class action lawsuits often are filed when it would be impractical or prohibitively expensive for each person who was harmed to file an individual lawsuit, and they enable small shareholders or consumers to seek recovery from large corporations possessing much greater legal and financial resources.
The typical class action takes at least 2-3 years to litigate, although the actual time it takes to resolve a case varies, depending on the complexity of the case, the issues involved and other factors.
In a class action, one or more person files a lawsuit on behalf of a larger group of people. The group of people the lawsuit represents is the class. When a lawsuit is filed, it will define the proposed class. Anyone who meets this definition will be known as a class member.
Although a lawsuit may be filed and proposed as a class action, it is not a class action until the judge decides that it is appropriate to consider the class’s claims together. This is known as certifying the class or granting class certification.
A putative class action is a lawsuit that was filed as a class action but has not yet been certified as a class action.
In class actions, all class members are included in the class unless they choose to "opt-out" of the case. In a collective action, however, class members must "opt-in" or "join" the case. Collective actions usually involve failure to pay overtime, failure to pay minimum wage or workplace discrimination. Only those employees who choose to "opt-in" to a collective action will be eligible to receive compensation if the lawsuit is successful.
A mass tort is when many people file lawsuits on their own behalf. A class action is where one or more file a single lawsuit on behalf of many others. Mass torts usually arise in circumstances where class actions are inappropriate such as when many people suffer physical harm from dangerous drugs or medical devices.
In a mass tort, a few cases are sometimes selected to be tried to predict the outcomes of the others. The attorneys learn the strengths of their legal arguments and gain insight into how juries could rule. While the results of the bellwether trials are not binding on other plaintiffs, the attorneys may use the results of the bellwether cases to negotiate a settlement.
If the plaintiffs in a class action win damages at trial or negotiate a favorable settlement, typically a fixed amount of money is paid into an account to be distributed equally to the class members. Sometimes class members will be required to make a claim to receive their share of the recovery. If so, notice of the requirements will be sent to all known class members.
A common fund is a pool of money created to provide compensation to class members. A common fund may be established because of a settlement or an award of damages at trial. Each class member may be required to file a claim to receive their share of the common fund.
Sometimes, after class members are paid, there is still money in the common fund, because class members did not submit claims or did not cash their checks. Sometimes, the remaining money will be returned to the company being sued, it may be distributed to remaining class members or it may be donated to charity. Donations of litigation funds to charity is called a cy pres award. Typically, the charity is one whose mission aligns with the subject matter of the case. For instance, in a case involving unpaid overtime, the remaining funds may be dedicated to an organization that helps further workers' rights.
If the parties reach a settlement, the Judge will hold a hearing to determine if the settlement is “fair, reasonable and adequate.” If any class members object to the terms of the proposed settlement, the judge will consider their objections and issue a ruling either approving the proposed settlement or rejecting it.
If a class action is successful, the attorneys representing the class members usually receive a percentage of the amount that is recovered by the lawsuit. Fees can range between 15 and 33% of the total amount recovered. The judge presiding over the class action must review the attorneys’ request for fees to make sure it is reasonable.
If a class action is dismissed or a jury rules in favor of the defendant, both the person who filed the suit and the class members will not be entitled to any settlement money and the person who filed the suit will be unable to bring another lawsuit concerning the issues in the case. In addition, the Court may award the defendant its costs of the suit. “Costs” typically consists of the costs of transcripts, filing fees and copies. It is important to understand whether an adverse cost award will be paid by the attorneys or will be expected to be paid by the named plaintiffs.
A class representative must have “claims or defenses...typical of the claims or defenses of the class”, and must be able to “fairly and adequately protect the interests of the class”.
In order to protect the interests of all class members, the class representative should have similar interests to those of the class members; such as having suffered the same type of losses under similar circumstances. So, the class representative must have a good claim that is like that of the other class members. Bankruptcy forces people to give up certain claims, sometimes without realizing it. If you've had a recent bankruptcy, your lawyer should check to make sure you haven't given up your claim.
The class representative should also not have a conflict of interest with the other class members. For example, a class representative should not have any personal relationship or family ties to the lawyers or court officers.
It is also important that the class representative be trustworthy. A class member with a history of deception is unlikely to qualify as an adequate class representative.
In a class action, the named class representatives represent the interests of all members of the class in an effort to obtain appropriate relief and recover damages for the class members.
A class representative must adequately and fairly represent the class members. This means that a class representative must always consider the interests of the class member just as they would consider their own interests.
A class representative is not required to be particularly sophisticated or knowledgeable about the subject of the lawsuit. However, they should remain interested in the progress of the lawsuit and must make every effort to provide their lawyer and the court with all relevant facts of which they are aware.
A class representative participates actively in the lawsuit, such as by reading the complaint and understanding it to the best of their ability, cooperating fully in any discovery, such as by testifying at deposition and trial, answering written interrogatories, producing documents, and by keeping generally aware of the status and progress of the lawsuit. A class representative’s lawyer will keep the class representative informed of major events during the lawsuit.
The class representative is required to vigorously prosecute the litigation. This means that the class representative must authorize their lawyer to do what is necessary to successfully prosecute the case on behalf of the class members and to consult with counsel concerning the prosecution of the litigation.
A class representative recognizes and accepts that any resolution of the lawsuit must be designed in the best interests of the class as a whole. The class representative’s lawyer will consult with the class representative before recommending a settlement.
A class representative understands and acknowledges that they will not receive any special benefits or recovery not afforded to other members of the class, except as warranted and approved by the court. When class actions settle, the court often awards additional compensation to the class representatives for the extra time and effort they spend on the case and for having the courage to challenge defendant’s conduct. This extra compensation is up to the court and cannot be guaranteed.
If you participate in a class action against your employer alleging workplace discrimination or violations of wage and hour laws, federal law protects you against retaliation by your employer.
In a class action, costs and expenses of the lawsuit are usually advanced by the law firm representing the plaintiffs. If there is a favorable resolution the attorneys will ask the court to allow reimbursement of out-of-pocket expenses and attorneys’ fees -- usually a percentage of the total recovery.
Zigler Law Group’s attorneys have focused their practice on class action litigation for more 20 years, and has represented consumers, whistleblowers and businesses as plaintiffs in high-stakes litigation in all manner of class actions.