USA – TEXAS Law and Practice Contributed by: Alana Ackels and Katie Beaird, Bell Nunnally & Martin
ference, and jurors are more open to receiving such testimony. One aspect of employment litigation that there has not been a quick return to in person is the pre-hear - ing mediations conducted. Mediation is the parties’ chance to have settlement discussions with a third- party neutral who assists in the negotiations. Prior to the pandemic, mediations typically occurred in the mediator’s office, and both parties travelled in for the meeting. However, mediations have largely remained remote, with both parties conferencing via video. In fact, some mediators have chosen to only offer remote proceedings. This is beneficial in keeping the cost of mediation down and being more efficient, but some larger disputes may warrant an in-person mediation in order to conduct the necessary negotiations. In Texas, as in other states, a class action is a legal procedure that allows one individual or more to sue on behalf of a larger group of individuals who have simi - lar claims. For employment claims, this could involve issues such as wage and hour violations, discrimina - tion or wrongful termination. Eligibility for a Class Action To proceed with a class action, the claim must meet certain criteria, as follows: • numerosity – the class must be so large that indi - vidual lawsuits would be impractical; • commonality – there must be common legal or factual issues that affect all class members; • typicality – the claims or defences of the repre - sentative parties must be typical of the claims or defences of the class; and • adequacy – the representative parties must fairly and adequately protect the interests of the class. Filing a Class Action The procedure for filing a class action is as follows. 9. Dispute Resolution 9.1 Litigation
• Complaint – the process begins when a plaintiff (or a group of plaintiffs) files a complaint in court, outlining the claims against the employer. • Certification – the court must certify the class before it can proceed as a class action. This involves a hearing where the judge will evaluate whether the case meets the requirements for class action status discussed in the foregoing. • Notice – once the class is certified, notice is gener - ally sent to all potential class members, informing them of the class action and their rights. Types of Employment Claims Suitable for Class Actions Common employment issues that might be addressed in a class action include: • wage and hour claims – allegations of unpaid over - time, misclassification of employees as exempt or other wage violation; • discrimination – claims of systemic discrimina - tion based on race, gender, age, disability or other protected characteristics; and • unlawful termination – cases where multiple employees claim they were wrongfully terminated under similar circumstances. In class actions, it is crucial to have experienced legal representation. Attorneys specialising in employment law and class actions can help navigate the complexi - ties of the case, including certification, litigation and settlement negotiations. 9.2 Alternative Dispute Resolution With a well-written agreement, most Texas courts are quick to enforce an arbitration agreement signed by the employee. If the employee signs electronically, it is important to provide the agreement in a secure fashion and save certain signature authorisation data from the e-signature. These agreements are typically entered into as part of the employee’s hiring paper - work and can apply to any future claim arising from the employee’s employment, with the exception of certain claims (eg, sexual harassment claims and workers’ compensation claims). At the federal level, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021
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