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Fighting for justice isn’t all dragon-slaying

Workers’ rights protected by commenting on Federal Rules of Civil Procedure

June 4, 2014: It’s easy to celebrate when we win a lawsuit holding an employer accountable for stealing wages. And victory is sweet when we pass a law giving workers more tools to enforce their rights. But not all advocacy automatically draws cheers the way a lawsuit or legislation can. So brace yourself for the news that justice for low-wage workers took a step forward when the Public Justice Center and a host of advocates weighed in on the Federal Rules of Civil Procedure. These are the rules that tell lawyers and judges how a case in court will be handled. 
We keep an eye on the Rules of Civil Procedure because such seemingly dry stuff can affect the lives of people living in poverty. Consider this scenario: Your employer doesn’t pay you some of your wages, so you sue to get him to pay up. Proving his bad behavior to the court requires you to get documents like time sheets, pay records, personnel policies, and contracts, all of which your employer controls. The only way to get those documents is through “discovery,” a process which compels the employer to give your lawyer access to the documents. Your employer may not want to give you those documents because (1) it will help you prove your case against the employer, and (2) it costs the employer time and money to find and make copies of the documents. You would have a hard time proving your case if court rules allowed your employer to withhold relevant information from you. 
This scenario had the potential to become quite real when the Judicial Conference of the United States proposed changes to the Federal Rules of Civil Procedure that would have limited discovery in federal court cases based on the amount of money at stake. Such a change would harm low-wage workers, who typically sue to recover relatively small amounts of money. If the cost to the employer to provide the documents would be high in comparison to the amount for which the worker is suing, that could weigh against the worker in getting the information requested. Imagine how hard it would be to prove that an employer has failed to pay wages if this proportionality test kept low-wage workers from getting pay records and time sheets from the employer.
Recognizing the damage this and other proposed limits on discovery could cause for low-wage workers, the Public Justice Center’s Workplace Justice Project submitted comments and presented our concerns at the public hearing before the Judicial Conference’s Advisory Committee. In total, the Committee received over 2,000 written comments and heard from over 125 witnesses. 
This May, the Advisory Committee took the advocacy community’s concerns to heart, withdrawing four proposed Rule changes and modifying the proposed rule on proportionality. The change will make “the importance of the issues at stake in the action” the most important factor in determining how much discovery can be done, rather than the amount of money in question. The Advisory Committee also noted that parties do not always have equal access to information, and that should be taken into account when courts determine the amount of discovery allowed. This is a major victory that will encourage federal courts to take low-wage workers’ cases seriously.

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