- Written by Glen Williams
In 2014, the case of Campbell-Ewald Co. v. Gomez was before the Ninth Circuit, posing a question of whether a defendant’s offer of settlement providing a named plaintiff complete relief before the class is certified could render the plaintiff’s individual and class claims moot – and thus subject to dismissal. Such a strategy would allow class action defendants to “pick off” named plaintiffs and evade class litigation by simply offering the class representative plaintiff his or her full relief and then seeking dismissal of the entire class action if the plaintiff declines the offer.
The Ninth Circuit, however, decided in favor of the plaintiff, ruling that an unaccepted settlement offer – even if it would fully satisfy a plaintiff’s claim – is insufficient to render that plaintiff’s claim, or the entire class action, moot. The defendant had staunchly argued that the U.S. Supreme Court ruled to the contrary in the 2013 case of Genesis Healthcare Corp. v. Symczyk, but the Ninth Circuit was unpersuaded by this because the Genesis case involved a “collective action” under the Fair Labor Standards Act rather than a “class action” under Rule 23 of the Federal Rules of Civil Procedure.
- Written by Helen Braginsky
In its efforts to further restrict employers from conducting their business operations, the National Labor Relations Board (NLRB) issued two decisions which not only have a major impact on the confidentiality of employer investigations into employee misconduct, but also undermine an employer’s ability to keep witness statements obtained during the investigation confidential.
In Banner Health System, 362 NLRB No. 137, an employee whose normal equipment was not functioning was given alternate instructions by his supervisor on how to carry out his duties. The employee made an internal complaint to the employer, citing health and safety concerns pertaining to those instructions. During the interview, the employee was asked not to discuss the matter with his co-workers while the investigation was ongoing.
The NLRB held that this request that the employee maintain confidentiality violated section 7 of the National Labor Relations Act (NLRA). Section 7 protects employees’ abilities to engage in concerted activities for mutual aid or protection concerning the terms and conditions of employment. Encompassed in section 7 rights is the ability for employees to discuss discipline or ongoing disciplinary investigations involving themselves or coworkers. Such discussions are vital to employees’ ability to aid one another in addressing employment terms and conditions with their employer.