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Q&A: Justin Swartz on Workers' Rights, Concepcion and Gristedes

thomsonreuters.com—Carlyn Kolker

Justin Swartz is the co-chair of the class action practice at Outten & Golden, a New York law firm that represents employees in employment litigation around the country.

Swartz has a broad practice representing workers in class and collective action cases: He has represented dancers suing gentlemen's clubs over unpaid wages, stockbrokers suing financial services companies in race and sex discrimination cases, restaurant workers suing over unpaid tips and retail workers over claims that they were denied overtime pay.

He joined Outten & Golden in 2003.

Reuters asked about his favorite case and recent developments affecting employee class actions. The questions and answers have been edited for brevity and clarity.

Reuters: Why and how did you decide to become a plaintiff-side employment lawyer?

Swartz: During law school, I was a part-time clerk for Stowell & Friedman, an outstanding plaintiff-side civil rights and employment firm in Chicago, working on a class action race discrimination case against a small Chicago suburb on the Southside. My mentor there, Linda Friedman, still one of the most brilliant lawyers I've met, taught me how to use litigation to make change and fight abuses of power. Stowell & Friedman hired me when I graduated, and I worked on individual and class action discrimination cases there for several years. I see my current practice, primarily prosecuting class action wage theft cases, as a natural extension of my civil rights background. Forcing corporations to pay their workers properly is an important way to check corporate excess and help people who need it.

Reuters: You've represented employees in litigation against dozens of companies. What was your favorite?

Swartz: Without a doubt, my favorite case is Torres v. Gristede's, where we recovered about $3.5 million dollars for hundreds of grocery store workers, some of whom were awarded more than $38,000. We were able to help a lot of people and make good case law, including an order holding Gristedes' owner, John Catsimatidis, who is now running for mayor of New York City, individually responsible for Gristedes' unlawful pay practices. It has been more than nine years since we filed the case and it is just winding down now. It is especially satisfying because, in order to achieve this great result, we had to overcome what the judge called Gristedes' "vigorous approach to litigating" the case.

Reuters: Who are the defense lawyers that you most admire?

Swartz: There are some very good lawyers on the other side. I've learned a lot from many of them. The best are those that analyze cases properly, tailor their approach to the client and the case and don't fight everything for just the sake of fighting or billing time. Michael Gray and Matt Lampe at Jones Day; Noah Finkel, Peter Walker and Chris Lowe at Seyfarth Shaw; and Allan Bloom, Stephen Sonnenberg and Emily Pidot at Paul Hastings all come to mind as lawyers who clearly care about their clients, are not careless with their money and do a good job choosing their battles - and winning many of them.

Reuters: How has the sea change resulting from recent Supreme Court decisions affected your practice? Have you gotten pickier about the cases you take?

Swartz: I don't see Dukes or Comcast as a "sea change" in the wage-and-hour context and they haven't affected the way we pick our overtime cases. To the extent that they apply to wage-and-hour cases at all, Dukes and Comcast just restate longstanding class action principals that we always took into account in our case selection process. Concepcion does change things quite a bit, but corporations should be careful what they ask for. Plaintiffs' lawyers will adapt and will not let employers bar their workers' access to justice. Widespread use of class action waivers will result in thousands of individual arbitrations, which is a bad result all around - more expensive for employers and an impediment to enforcement of important remedial legislation.

Reuters: What do you think is the biggest injustice facing the American worker today, and can litigation help remedy it?

Swartz: Across the country, low-wage immigrant workers are the most powerless and the most abused. New York City is no exception. Litigation can absolutely help because it allows workers to recover their hard-earned wages, empowers them to stand up to other employers and deters future violations by publicly demonstrating what happens when companies violate their workers' rights.

Reuters: What was the last book you read and what are you reading now?

Swartz: I recently picked up "Drinking With Men," by Rosie Schaap, an affectionate account of the author's life in bars, pubs and taverns. I guess that reveals something about me.