We often use the phrase “the adversarial process” to describe our legal system. The basic idea: two advocates (lawyers) represent their parties’ interests before an impartial arbiter (the court). In the idealized version of the adversarial process, the truth emerges from a dignified clash of opposing perspectives and our legal system simply honors the result. In reality, the adversarial process doesn’t encourage the parties to always fight fairly. It is in those times that the role of courts in policing this clash is so important, so that it doesn’t become a race to the bottom in bad behavior.
A perfect example of where the court’s intervention is necessary is Acosta v. Austin Electrical Services LLC. In this case, the Department of Labor initiated a lawsuit that alleges that the defendant violated the Fair Labor Standards Act by failing to pay overtime and keep proper records. After discovery closed, the owner retained non-litigation counsel to conduct a company-wide “human resources audit,” which included gathering declarations from employees that could impact their claims to back pay. The Secretary of Labor asked the district court to enjoin the company from continuing the audit. The court issued an injunction that (1) prohibited the company from asking employees to sign declarations about its timekeeping policies during the relevant time period; (2) required the company to inform employees that any future meetings are voluntary and give them copies of their declarations; and (3) prevented the company from asking about employees’ contacts with the Department of Labor. The defendant appealed.
The Impact Fund, along with our co-authors Bryan Schwartz, Rachel Terp, and Eduard Meleshinsky at Bryan Schwartz Law, Adam Hansen at Apollo Law, and Matt Helland at Nichols Kaster, filed an amicus brief in the Ninth Circuit urging the court to affirm the district court’s order. We are proud to have been joined by 12 other organizations dedicated to enforcing civil rights and workplace equality and protecting the rights of employees in the workplace: Asian Americans Advancing Justice - Asian Law Caucus, Bet Tzedek, California Rural Legal Assistance Foundation, Centro de los Derechos del Migrante, Inc., Centro Legal de la Raza, Equal Rights Advocates, Koreatown Immigrant Workers Alliance, Legal Aid at Work, National Employment Law Project, National Employment Lawyers Association, Public Justice Center, and Worksafe.
Our brief highlights the role afforded to courts to intervene and address the conduct of counsel and parties in litigation. This historical role is especially important in litigation connected to the workplace, where the power imbalance between employers and employees presents unique threats to the rights of employees in the form of coercion and retaliation. We catalog the many examples of employers using misleading and coercive tactics to undermine their workers’ rights, including threats, affirmative misrepresentations, omissions of material information, misuse of employee interviews and declaration, and gathering releases and class/collective member opt-outs. The pervasive use of these underhanded tactics all serve the same end: they chill employee participation in ongoing litigation and deprive employees of their legal rights.
Courts have broad discretion to combat the many forms of bad employer behavior that we detail in our brief. And, as we argue, they can exercise this discretion in a manner that does not infringe on employers’ right to free speech but instead puts in place sensible safeguards to protect against tactics that deprive workers’ rights. Though the adversarial process is here to stay, workers’ rights cannot be collateral in the clash and courts should continue to be empowered to make that process truly fair for all those involved.