Employment & Civil Rights
Milberg’s Employment & Civil Rights Practice Group focuses on class actions and individual cases nationwide arising from unpaid wages and sales commissions, improperly managed retirement benefits, workplace discrimination, and wrongful termination.
Lax government enforcement of labor standards leaves workers vulnerable to corporate abuse. When large companies deny the rights of their employees, Milberg is there to fight back. Our long history of advocating for workers includes cases against many Fortune 500 companies, including recent victories against IBM, Mastercard, Salesforce, American Express, Allstate Insurance, and Farmers Insurance.
The firm’s Employment & Civil Rights Practice Group is led by Matthew Lee (Practice Group Chair) and Jeremy Williams (Practice Group Vice-Chair). Lee and Williams have spent the majority of their careers litigating such cases and are unafraid of taking on corporate goliaths on behalf of wronged employees.
Cases We Handle
Overtime payment is governed by the Fair Labor Standards Act (FLSA), according to which covered nonexempt employees must receive overtime pay for hours worked over 40 hours per workweek, at a rate of at least 1.5 times their regular pay rate. Some states have overtime requirements that are more stringent than the FLSA.
In the fiscal year of 2022 alone, the Department of Labor collected more than $134 million in back wages for unpaid overtime. However, employees do not have to rely on DOL enforcement. They may also file private lawsuits.
Unpaid sales commissions
The FLSA does not require the payment of commissions, but many sales organizations pay their employees a commission based on the number of sales they make. The terms and conditions upon which commissions will be paid are outlined in a written agreement between the salesperson and the organization.
Unpaid sales commissions are unpaid wages, and salespeople have the legal right to the commission they earn from a sale.
Milberg attorneys have settled lawsuits on behalf of IBM sales representatives who have sued the company for allegedly reducing their commission payments.
Milberg also won a jury verdict against IBM on behalf of a former manager who was terminated after reporting racial bias in connection with unpaid commissions.
Mismanagement of retirement plans (ERISA litigation)
Millions of workers share in the costs of employee retirement benefits by contributing to employer sponsored retirement benefit plans, such as 401(k) plans and private pensions. These plans can be vulnerable to mismanagement and abuse by employers and others with authority over plan assets. For example, fiduciaries may convert employee contributions for personal use or to cover business expenses, charge excessive fees, and make imprudent investments.
The Employee Retirement Income Security Act (ERISA) is a federal law that establishes fiduciary standards of conduct and enforcement provisions for covered plans. ERISA allows private sector litigation for denied benefits or breach of fiduciary duty.
Milberg has a strong track record of representing large groups of employees in ERISA class actions, including a $40 million settlement on behalf of current and former G.E. employees who alleged the company’s 401(k) Plan fiduciaries imprudently invested more than two-thirds of the Plan’s assets in company stock.
Misclassification of employees
Independent contractors are not entitled to employee benefits or fundamental labor rights like FLSA pay protections. They also must assume the full financial cost of Social Security and Medicare taxes that are shared by employers and employees.
With the rise of the so-called “gig economy,” many workers are performing jobs—once handled by full-time employees—as freelancers. While some employers argue that workers prefer the flexibility of freelancing, this also provides employers with an economic incentive to misclassify employees as independent contractors.
Misclassification is illegal and can lead to DOL or state attorney general enforcement actions. Misclassified workers can also file class action lawsuits to recover back pay, overtime, benefits, and other damages.
Unreimbursed business expenses
No federal law requires employers to reimburse employees for necessary business expenses, but several state laws do. Employers that voluntarily adopt reimbursement policies typically outline them in a plan that creates a contractual entitlement to expense reimbursement.
Covered expenses depend on the line of work but can include business-related travel, meals, accommodations, training, tools, and supplies. Employers that fail to reimburse workers for work-related expenses, in violation of state law and/or written policy, can face legal action. Increasingly, remote employees are asserting in lawsuits that their employers are obligated to pay for work-related costs like monthly Internet costs and utility bills.
With the exception of Montana, employment in the U.S. is presumed to be “at-will.” At-will employment means that an employer can fire an employee at any time and for any reason—except an illegal one—without facing legal liability.
Federal and state discrimination laws forbid employers from basing employment decisions on factors that include race, color, religion, sex, national origin, age, disability, sexual orientation, or veteran status.
Individuals belonging to these classes may still be fired for poor job performance, but not because of their membership in a protected class. Employees also can’t be terminated for retaliation over asserting their worker rights, or for whistleblowing.
Adverse employment actions are not limited to wrongful termination. Workers can keep their jobs but still be illegally discriminated against in the workplace.
The U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency that protects individuals from employment discrimination involving race, color, religion, sex, national origin, disability, age, or genetic information. Denial of reasonable workplace changes based on religious beliefs or disability, improper questions about or disclosure of genetic information or medical information, retaliation, and harassment of protected class members are prohibited as well.
The EEOC enforces federal laws, including the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, and the Equal Pay Act, that prohibit discrimination against job applicants and employees in a variety of work situations, including hiring, firing, promotions, training, and wages and benefits. Almost all states have adopted similar employment discrimination laws.
Verdicts and Settlements
• Jury verdict of $11.1 million in Kingston v IBM (Western District of Washington) – involving the wrongful termination of a software sales manager
• $75 million class action settlement with Farmers Insurance on behalf of its agents alleging that Farmers Insurance misclassified its agents as independent contractors (Superior Court in Los Angeles County, California)
• $4.2 million class action against SkyWest Airlines for allegedly failing to provide proper rest and meal breaks to its employees (Northern District of California)
• Confidential workplace racial discrimination settlement of $3.1 million
• $3.75 million class action settlement of Coca-Cola retirement benefits case (Western District of North Carolina)
• Represented plaintiff class of nearly 7,000 insurance agents in Jammal, et al. v. American Family Insurance, resulting in a unanimous verdict that American Family improperly classified its agents as independent contractors to deny them ERISA benefits
• $15.8 million settlement in an ERISA class action case against AK Steel Corporation on behalf of a class of over 250 retirees of AK Steel’s Zanesville Works Plant in Ohio
• $178.6 million class action settlement against AK Steel Corporation resulting on behalf of a class of over 3,000 retirees of AK Steel’s Butler Works Plant in Pennsylvania
• Numerous confidential individual settlements in excess of $500k for cases involving unpaid sales commissions to software sales representatives and age discrimination
• Numerous additional confidential settlements in cases involving wrongful termination, discrimination, and unpaid sales commissions, including many for over $1 million
Since the firm’s founding in 1965, Milberg has repeatedly taken the lead in landmark cases that have set groundbreaking legal precedents, prompted changes in corporate governance, and recovered over $50 billion for our clients.