The traditional means by which workers asserted their collective rights was the union movement, but that has been in severe decline in the private sector. Class action lawsuits would appear to be the ideal modern substitute. There have been a few noteworthy successes for employees in the last few years, helping to ensure that employers in the banking sector abide by statutory requirements to provide overtime pay. Certification has proven to be a significant hurdle in these actions, and there appear to be some meritorious cases where certification was not achieved. It is arguable that the caselaw that has developed around the finding of a common issue for certification is too confining for the employment context. The application of the certification tests ought to be nuanced and contextual. Employment class actions typically involve considerable diversity among individual employees, and in such situations it makes sense for the court to focus on the overriding central principles as providing a common issue, rather than use the individual variations to reject certification.
Peter S. Spiro (Thu,) studied this question.