A New York federal judge has conditionally certified an Equal Pay Act collective action covering about 7,000 female employees of KPMG LLP. A $400 million sex bias lawsuit was filed against KPMG for allegedly underpaying female client service and support professionals. U.S. District Judge Lorna G. Schofield granted the Plaintiffs’ motion for conditional certification and ordered that notices be sent to all KPMG female employees who held specific positions in either the tax or advisory practice groups from October 2008 to the present. Judge Schofield said that the Plaintiffs made a “modest factual showing” that they and potential opt-in Plaintiffs are similarly situated. The judge wrote in a 21-page opinion and order:
Specifically, plaintiffs have submitted declarations detailing their personal experiences; documentary evidence of KPMG’s firm-wide compensation policies and job descriptions; and statistical evidence of discrimination. This is sufficient to satisfy plaintiffs’ burden at this stage of litigation.
Judge Schofield’s decision to conditionally certify the collective action means thousands of women will receive opt-in notices, which will explain that it is illegal for employers to retaliate against employees for exercising federally protected rights. Because of the large number of potential Plaintiffs, the judge set the opt-in period for 120 days.
Judge Schofield also granted in part and denied in part KPMG’s motion to dismiss certain Plaintiffs’ Rule 23 class claims for lack of standing. KPMG’s lawyers had argued that two of the named Plaintiffs couldn’t bring such claims because they were not seeking or not eligible for reinstatement. The judge rejected the Defendant’s motion as to one of the named Plaintiffs, Donna Kassman, but granted it as to fellow named Sparkle Patterson, a fellow Plaintiff in the lawsuit. Judge Schofield made a most important ruling, saying in his order:
At the end of the day, all kinds of relief remain viable in the case, as there are Rule 23(b)(2) eligible representatives. Thus, when plaintiffs move for Rule 23 certification, plaintiffs have the option to seek both Rule 23(b)(2) and (b)(3) certification.
The judge’s dual decisions last month are the most recent developments in the ongoing sex bias action, coming more than a year after KPMG asked the court not to stop the clock on the statute of limitations for potential members of the Equal Pay Act (EPA) collective action. In June 2013, KPMG lodged its opposition brief in response to the Plaintiffs’ motion for equitable tolling for absent collective action members’ claims under the EPA, which is a component of the Fair Labor Standards Act. At a hearing on Aug. 1, 2013, the court denied Plaintiffs’ motion for equitable tolling without prejudice to renewal by future opt-in Plaintiffs, saying it would allow discovery and notice to be issued as if the motion had been granted.
The Plaintiffs, who filed suit in June 2011, are seeking relief under the EPA and other laws for female client service and support professionals who allegedly faced gender, pregnancy and caregiver discrimination at the audit, tax and advisory services firm. The third amended complaint, filed in June of 2012, alleged that women at KPMG were both under-promoted and underpaid. KPMG claims that the Plaintiffs’ allegations are without merit, and said it would “vigorously defend itself.”
The case is in the United States District Court for the Southern District of New York. We will monitor this extremely important case as it progresses through the system.
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