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This article is reporting that the amount of class action lawsuits regarding employment has reached an all time high this year. I think that this is a product of the evolving relationship between labor movements and the political system as much as new litigation strategy.

Burger Law is currently involved in a class action lawsuit that really illustrates my point. In one pending case we have against a large governmental agency, we represent a large amount of government employees for back pay.

In the past, the labor union representing them would have simply told them to strike until they were paid. However, in recent years labor unions have been on the decline in power and importance. As a result, the legal rule protecting labor has shifted from a regulatory rule to a liability rule.

There are costs and benefits to protecting worker rights with liability rules as opposed to regulatory ones. The biggest is enforcement. With a regulatory rule, unionized workers effectively govern employer behavior in a forward looking way through labor agreements and the like.

The new liability rule is more backward looking. This means employers can maybe get away with more at first. However, when they do make a mistake, it will cost them more to fix it.

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