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AARP Urges Court to Allow Employees to Challenge Unfair Workplace Practices

AARP continues fighting efforts to limit the ability of workers to bring class actions challenging employment practices.


Current and former assistant store managers at Duane Reade, a drugstore chain, complained that their employer failed to pay them overtime in violation of federal and New York state law. They filed a lawsuit on behalf of themselves and more than 700 other employees whom Duane Reade classified as exempt from overtime.

A federal district court in New York certified their case as suitable for a class action. Class actions are proceedings whereby alleged victims who all suffered the same kind of harm try to right a widespread wrong in a single lawsuit, rather than trying to sue one-by-one. Class actions  are thus an efficient and effective way to change corporate-wide policies. In order to be certified as a class, plaintiffs must demonstrate to the court sufficient commonality in facts at issue, applicable law, and  relief sought.

Duane Reade challenged the class certification against it, arguing that there was not sufficient commonality because each plaintiff sought a different level of monetary damages based on his/her individual situation (which differed as to specific salaries, hours, seniority, etc.)

Based on a U.S. Supreme Court decision that narrowed the scope of class certification in  consumer rights cases (Comcast v. Behrend), the district court  reconsidered its certification, issuing a “partial certification” that aggregated only the claims as to whether the company was liable for not paying overtime in general. Actual damages would have to be determined one-by-one.  Duane Reade now challenges that modification, arguing that any class certification in the case is improper.

AARP Foundation Litigation attorneys filed AARP’s friend-of-the-court brief argues that the Comcast decision does not change the long standing rule that individualized damages do not preclude certification of a class to decide common fact and legal issues. The brief highlights both the judicial efficiency of class actions and the basic fairness — many low income people or people who fear retaliation (i.e. if suing an employer) would be hesitant or unable to afford to finance individual lawsuits even if each lawsuit addressed widespread corporate practices that flout the law.

What’s at Stake

If defendants can squash class action lawsuits that challenge the exact same practice applied across a wide array of victims (be they consumers, employees, or others), then laws protecting against the very abuse challenged will be ineffective. AARP filed a brief in Comcast and continues to fight attempts to expand that decision beyond its boundaries.

Case Status

Jacob v. Duane Reade is before the U.S. Court of Appeals for the Second Circuit.