美国劳资诉讼新动向：薪酬和工时诉讼

    在美国，自从20世纪60年代民权法颁布以来，包括《1964年民权法第七章》（Title VII of the 1964 Civil Rights Act）、有关堕胎权的罗伊诉韦德案（Roe v. Wade）以及严禁学校在学习和体育方面进行性别歧视的《教育法修正案第九条》（Title IX），从很多方面持续地推动了社会变革。这些变革也影响到了工作场所。劳资诉讼的核心毫无意外地都与这些问题相关联。

    几十年来，与工作场所的非法歧视、骚扰和报复行为相关的法律诉讼大幅增长。员工向针对性别、人种和国籍的敌意以及陈规陋习发起挑战。

    但近年来有了一些变化。虽然歧视诉讼还在稳步增长，另一类劳资诉讼已开始成为原告律师的新宠——薪酬和工时诉讼。在职场中，民权革命已化身为薪酬和工时革命。

    2011年，有超过7,000宗集合诉讼提交至美国联邦法院，按《公平劳工标准法》（Fair Labor Standards Act，FLSA）提起了薪酬和工时侵权诉讼，数量较2000年激增近4倍。

    需要做一些法律上的澄清：集合诉讼是一类特殊的集体诉讼，仅适用于一群雇员依照《公平劳工标准法》提出的未获应得报酬的诉讼，包括被错误归入豁免员工（免付加班费），或者有些工作时间未获薪酬（比如，被要求加班却没拿到钱）。

    遭遇诉讼的不只是小公司，也有一些大公司。公司钱越多，就越有吸引力。

    举一类常见的诉讼：员工声称被要求超时工作。这样的诉讼有一大堆，涉及从沃尔玛（Wal-Mart）到美林（Merrill Lynch）等众多公司。而且，美国最高法院（U.S. Supreme Court）正在考虑，葛兰素史克（GlaxoSmithKline）将外部销售代表归入豁免员工的做法是否合适。这些指控并不意味着公司做错了什么，但它们确实需要花相当的时间和金钱来为自己辩护。

    什么激发了增长？

    总的来说，谈到反歧视时，企业能看到遵规守纪的好处。由于一些人的出身而将他们拒之门外，企业也会失去拥有他们聪明才智的机会。而且，随着企业日益推行和遵从公平就业法规，采用“胜诉分成”方式起诉企业，可能给原告律师带来更大的业务风险，他们只有胜诉才能拿到钱。我知道，这会让一些人大感吃惊（或者根本不会，根据各人情况而不同），但原告律师不仅仅主张社会公正。

    Starting with the civil rights legislation of the 1960s, including Title VII of the 1964 Civil Rights Act, to Roe v. Wade, and Title IX, the second half of the 20th century was in many ways devoted to social change. These efforts reverberated throughout the workplace. And the core of employment-related lawsuits unsurprisingly involved these issues.

    During those decades, we saw a dramatic increase in legal challenges to unlawful discrimination, harassment, and retaliation at work. Employees appropriately fought against not only animosity based on gender, race, and national origin, for example, but also stereotypes based on them. Stereotyping is often a form of impermissible discrimination.

    However, in recent years, something has changed. While we still see a strong and steady stream of discrimination claims, another type of employment suit has become the darling of plaintiffs' lawyers: wage and hour suits. In the employment arena, the civil rights revolution has morphed into a kind of wage and hour revolution.

    More than 7,000 collective actions were filed in federal court in 2011 alleging wage and hour violations under the Fair Labor Standards Act, an approximately 400% increase since 2000.

    Some legal clarification: a collective action is a special type of class action suit that applies only to claims brought by a group of employees under the federal Fair Labor Standards Act, claiming they were not paid what they were owed because either they were misclassified as exempt from overtime or they were properly classified as non-exempt but they were not paid for some of the time they worked (for example, by being required to work off the clock without being paid.).

    It's not just small employers that are getting hit. It's the big guys too. The deeper the company's pockets, the more attractive the target.

    Take one common claim: employees claiming that they were required to work off the clock. There has been a salvo of such claims, from employees at companies like Wal-Mart (WMT) and Merrill Lynch. And the U.S. Supreme Court is currently considering whether outside sales representatives for GlaxoSmithKline (GSK) were properly classified as exempt from overtime pay. Claims don't mean the employer did anything wrong, but they do involve considerable time and money to defend.

    What's driving this spike?

    Overall, companies see the business benefits of keeping a tight ship when it comes to discrimination. To exclude someone because of who they are is to deprive your company of their talent. And as employers grow increasingly progressive and compliant with equal opportunity regulations, it may become a bigger business risk for a plaintiffs' lawyer to sue companies on a contingency basis, where they get paid only if they win. I know this will be shocking to some (or not at all, as the case may be), but plaintiffs' lawyers are not simply advocates for social justice.