USA Law and Practice Contributed by: Chuck Baldwin, Ken Siepman, Bonnie Martin and Justin Allen, Ogletree Deakins
punitive damages, and attorney’s fees and costs – as well as equitable relief such as reinstatement. 8.3 Digitalisation Employment disputes may include in-person or virtual depositions. Virtual court proceedings are increasingly permitted in the USA, including court conferences, settlements and mediations, and trials. Even where the proceeding itself is in person, more judges are allowing witnesses to appear virtually. This is generally a court- or judge-specific determination – although the parties may agree to conduct depositions or medi - ations virtually. Employment litigation is a robust practice, with tens of thousands of lawsuits filed by employees annu - ally. Most employment lawsuits take place in federal court pursuant to federal statutes, such as Title VII, the ADA and the FLSA. However, many employment claims may also be filed in state court, and certain state statutory schemes make state court litigation more common than in other states. In a routine single-plaintiff employment discrimination or retaliation case, an employee typically must file a charge of discrimination with the EEOC (or analogous state agency) prior to filing suit. The agency will inves - tigate the claim and may choose to litigate the claim in federal court on behalf of the employee, or it may issue the employee a “right to sue” letter authorising the employee to file suit in court. 9. Dispute Resolution 9.1 Litigation
Class actions are also permitted for some employ - ment claims. Whether to certify a class action is often a hotly contested issue, with significant financial implications in certain types of cases, such as wage and hour disputes. In determining whether to certify a class, courts consider a number of elements, includ - ing whether there are common issues of law or fact that apply throughout the proposed class. 9.2 Alternative Dispute Resolution Arbitration agreements are used by many employers as an alternative to litigation. Federal law generally favours the enforcement of arbitration clauses, and courts will often compel the parties to arbitrate where an arbitration agreement exists. In addition, employers generally may enforce arbitration agreements contain - ing class action waivers. However, certain types of labour and employment claims (eg, sexual harass - ment and assault claims and unfair labour practice claims) are not subject to arbitration. 9.3 Costs A number of employment statutes, including federal anti-discrimination laws, typically permit the prevailing party from recovering attorney’s fees and costs.
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