It’s not easy representing workers in their disputes with large, powerful employers in wage and hour cases, but Outten & Golden LLP partner Justin Swartz has forged a successful career in this contentious practice area out of a drive that dates back to his early years growing up in a transitional Pittsburgh.
From representing unpaid interns accusing Hollywood studios of misclassification to taking on fast food giants accused of shorting workers’ pay, Swartz has experienced his fair share of tough battles whole representing workers accusing some of the biggest businesses in the world of wage and hour violations. He sees an institutional disadvantage at play.
“The judiciary seems to be increasingly hostile towards wage and hour plaintiffs and their claims, and I think that’s emboldened defendants to the detriment of workers,” Swartz, who co-chairs the firm’s class action practice group and its public interest committee, told Law360 recently.
Here, Law360 checks in with Swartz about the trajectory of wage and hour law in recent years and what it’s like representing workers suing powerful employers, among other things. This interview has been edited for length and clarity.
What wage and hour issues do you think deserve greater public attention?
One of the most critical issues to workers in America today is the avoidance of wage and hour law coverage. With Proposition 22 in California, an industry was basically able to exempt itself from the New Deal altogether. That’s a very dangerous thing if that spreads to other states and other industries, because we all rely on the protections of the New Deal, like Social Security, minimum wage and other things that have come to define being an American worker. If we allow industries to essentially opt out of being covered by those laws, then the structure breaks down and I don’t think anybody is going to like what it looks like.
Equally important is the ability of companies to unilaterally opt out of the legal system altogether with forced arbitration agreements. Courts have cooperated as companies have decided that they don’t have to defend wage and hour and other employment claims on the merits. Instead they can avoid them by barring the courtroom door and forcing individuals to find a lawyer who will bring an individual claim in arbitration, as opposed to letting them use a class or collective action mechanism that’s more efficient and fair to workers.
What drew you to this work?
I grew up in Pittsburgh, Pennsylvania, when it was a steel town, and as I got older I saw the effects of outsourcing in the steel industry and how it affected the community with massive layoffs and large-scale unemployment. That’s always stuck with me. Early in my career I focused on gender and race discrimination. When I moved to New York and started working on wage and hour cases, I was skeptical that they would have the same impact as the discrimination cases I’d worked on, but I came to see them as civil rights work as well.
Doing wage and hour work satisfied my urge to punish the bad guy. In a discrimination case, you have to prove that someone intended to do something discriminatory. In a wage case, it’s much more clear-cut sometimes. You just have to prove that they didn’t pay the wages that the worker was entitled to. It’s really satisfying to not only get money in workers’ hands, but also punish arrogant business people who think they’re more important than workers.
What are the most gratifying parts of your job?
I like to get money into the hands of workers. In a lot of class actions, workers are awarded a few hundred or a few thousand dollars each, and you’d be surprised at how many notes we get from people who just want to thank us for getting them that check that helped them pay the rent or buy a present for their kid where they otherwise might not be able to. It helps create confidence in the judicial system. Workers feel like they’ve been heard and they have power, and that’s a very satisfying thing for me as a lawyer.
My favorite cases are those representing workers at the lowest end of the income scale, making sure that they’re given the dignity of a fair day’s pay for a fair day’s work. My firm has changed the law in a number of important ways and I’m proud of my work on those cases as well.
What are some of the biggest challenges in bringing claims against big employers?
The biggest challenge is management lawyers. Outside counsel for these companies have an incentive to push the litigation as hard and as fast as possible when there may be another course that makes more sense for the parties in the case. This isn’t true with every outside counsel management firm, but with many of them we’ve found that they’re often a barrier to settlement. If we could just communicate directly with in-house counsel, cases would settle much more quickly and companies would spend much less on litigation.
Access to information is another issue. In any lawsuit, the defendant has more information than the plaintiffs, and that’s especially true in wage and hour cases. Many times, companies are able to stonewall plaintiffs and their lawyers for long enough and in a very effective way so that we don’t get the information we need.
What was your toughest loss?
One series of cases that stings the most is the one we lost against KPMG, the major accounting firm, where we represented audit associates who we believe were misclassified. They did nothing but grunt work and were subject to long hours and bad working conditions. We really wanted to change that industry and get them compensated for the extra time that they spent, but the district court and the Second Circuit disagreed with us. The lawyers on the other side from Sidley Austin LLP did an outstanding job litigating that case. Hats off to them, but that was one that certainly stung.