Comparative Perspectives on Employment Class Actions in France and the United States

There is an evolving landscape of class actions in France. This Insight explores how France’s expanding framework may develop in response to the maturity and influence of the long-established US model as related to labor and employment matters.

Introduced in France in 2014 for consumer, antitrust, and competition matters, class actions were expanded in 2016 to cover health, environmental, and employment claims, though initially they were limited in employment to discrimination and data protection claims. Following implementation of the 2020 EU Representative Actions Directive,[1] they now extend to all employer obligations. While few employment class actions have been filed to date, this broader framework may drive increased litigation.

By contrast, US class actions have deep roots, now governed by Federal Rule of Civil Procedure 23 and reinforced by the 2005 Class Action Fairness Act, making them a central mechanism in employment and other areas of law.

WHO COULD BE A CLAIMANT IN THE FRAMEWORK OF A CLASS ACTION

France: Class actions may be initiated by non-profit organizations, representative trade unions, and the Public Prosecutor’s Office (Ministère Public). In practice, representative trade unions are the primary claimants.

US: In the US, individual employees and former employees may bring a class action lawsuit, so long as they have standing to sue by demonstrating (1) that they were injured, (2) the injury is traceable to the defendant employer, and (3) the injury will be redressed by a favorable decision. The class representative must also meet the class certification requirements under Rule 23.

PROCEDURE – PRIOR FORMAL NOTICE TO THE EMPLOYER

France: Prior to initiating proceedings, the claimant must serve a formal notice on the employer detailing the breach and requiring it to cease. Within one month of receiving the notice, the employer must inform the works council and any representative trade unions within the company that it has received a notice to cease a breach and provide any relevant details. At the initiative of the works council or any representative trade union, the employer is required to engage in discussions regarding measures intended to remedy the alleged breach. The purpose of this mechanism is to encourage an amicable resolution of the dispute.

The class action may be brought after a six-month period has elapsed following service of the formal notice. However, if, before that period, the employer expressly rejects the notice on the ground that no breach has occurred or that the claimant lacks standing to bring a class action, the class action may be initiated immediately upon such rejection.

Class actions outside the scope of the Labour Code (e.g., data protection, consumer law) are not subject to this prior formal notice requirement.

US: Notice requirements in the US are not designed to give the employer notice of a class action or the opportunity to resolve the issue. Instead, the notice requirements (otherwise referred to as administrative exhaustion requirements) are focused on notifying federal agencies to give those agencies an opportunity to investigate claims before the employee files suit. For example, under Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA), a plaintiff must first exhaust administrative remedies before filing a claim in court.

During this process, the claimant would first file a claim with the Equal Employment Opportunity Commission (EEOC) or an authorized state or local agency. With the EEOC, the agency must determine if the claim has merit within 120 days. If the EEOC dismisses the charge, it issues the claimant a “right-to-sue” letter. The claimant can demand a “right-to-sue letter” if the EEOC does not timely complete its investigation and issue a determination or issues a probable cause finding but elects not to file an action on the claimant’s behalf. There are no administrative exhaustion requirements under the Fair Labor Standards Act (FLSA), Equal Pay Act (EPA), or Family and Medical Leave Act (FMLA), which fall under the jurisdiction of the federal Department of Labor.

ACTION SEEKING CESSATION OF THE BREACH

France: A class action may be brought exclusively for the purpose of obtaining cessation of a breach of French law and/or contractual obligations, without necessarily seeking compensation. This injunctive dimension is particularly significant, as it enables claimants to challenge structural or systemic practices within the company. Such actions may target, for example, policies giving rise to discriminatory effects (in relation to pay, recruitment, or career progression), unlawful infringements of employees’ rights (such as disproportionate monitoring systems), or failures to comply with applicable internal policies or collective agreements (e.g., concerning working time or remote work arrangements).

Where the court finds that a breach has occurred, it will order the employer to cease the unlawful practice. The court may also require appropriate publicity measures to ensure that individuals potentially affected are informed of the decision, thereby reinforcing the preventive and regulatory function of the mechanism.

US: Somewhat similar to the French class action approach, in the United States, a plaintiff in an employment class action may seek injunctive relief, which requires the employer to remedy adverse actions or policies that violate the law. For example, under the FMLA, such relief may include reinstating the employees to their positions or awarding them a promotion. This relief can also prevent the implementation or application of an employment policy or unlawful practice.

COMPENSATION MECHANISM

The Group Concerned by the Class Action

France: A class action may also be brought to seek compensation on behalf of a group of individuals affected by the alleged infringement. In France, the mechanism operates under an opt-in system, meaning that only individuals who expressly join the action may benefit from any compensation awarded.

It is for the court to structure the collective redress mechanism. In particular, the court will

• define the group concerned by establishing objective membership criteria;
• identify the types of harm to be compensated for each category of individuals within the group;
• set the opt-in period, which may range from two months to five years following completion of the ordered publicity measures;
• determine the amount of compensation or the criteria necessary for assessing individual losses; and
• •order appropriate publicity measures to inform potential group members.

This judicially supervised framework reflects the structured and court-driven nature of French class actions, which differs from more party-driven models.

US: Most employment class actions in the United States are asserted under Rule 23, which provides for an opt-out class, meaning that every class member will be bound by the proceeding unless they explicitly request to be excluded. Courts have recognized constitutional due process concerns inherent with this model, resulting in strict, judicially approved notice requirements to absent class members regarding the class action.

In contrast, class actions brought under the FLSA and ADEA adopt the minority opt-in approach. Like the French system, those who do not choose to join the collective action are not bound by the final judgment and may bring a separate claim.

Damages

France: Where damages are assessed on an individual basis, applications to opt in must be submitted either to the employer or to the claimant organization. The employer is then required to compensate each affected individual who has duly filed a claim within the time limit set by the court. The compensation phase is conducted under judicial supervision, typically through a court-ordered mediation process.

Where damages are assessed on a collective basis, the claimant organization is responsible for negotiating with the employer a collective compensation scheme reflecting the losses suffered by each category of individuals within the defined group. Any agreement reached remains subject to judicial approval, thereby ensuring consistency with the criteria set out in the initial judgment.

US: Plaintiffs asserting employment claims in class actions may seek various kinds of monetary damages if the particular statute permits it, including the following:

• Compensatory damages, which aim to make the employee whole and compensate for things such as emotional distress and non-wage out-of-pocket expenses
• Backpay for employees who were wrongfully terminated or declined promotion
• Unpaid wages and overtime
• Lost wages and benefits

Depending on the action, questions about damages might be addressed during the certification process, or the calculation of damages might be made after the court has fully litigated the issue. Individual compensatory damages require some form of calculation, and typically the plaintiff must provide a methodology to measure and quantify damages for the class.

Punitive Damages

France: A mechanism comparable to punitive damages exists; however, it is subject to two particularly stringent conditions: the establishment of deliberate misconduct and the existence of serial harm. In addition, the sanction is capped at twice the illicit gain for individuals and five times the illicit gain for legal entities. The proceeds from this penalty will be allocated to an endowment fund intended to finance class actions.

US: In class actions involving claims brought under Title VII and the ADA, punitive damages may be awarded if the plaintiff demonstrates that the employer engaged in the discriminatory practice with malice or reckless indifference. Each individual class member can recoup punitive damages, but the combined compensatory and punitive damages are capped per individual at between $50,000 and $300,000, depending on the size of the employer. State laws do not typically have these limits. While punitive damages are not available under the ADEA, liquidated damages (which effectively doubles back pay) may be awarded if the plaintiff can prove the employer’s violation was willful.

Funding of Class Action

France: The costs of the proceedings are borne by the claimant. Acknowledging that such costs could impede the development of class actions, the legislator has provided that punitive damages shall be allocated to an endowment fund intended to finance class actions.

US: Most plaintiffs in the United States fund litigation through contingency fee arrangements with their lawyers. In this arrangement, the lawyer will advance the costs of litigation. More recently, private equity firms in the United States have started investing in employment litigation, which is a new source of funds driving increased class action filings.

Practice

France: Given the previously narrow scope of class actions in employment law, only a limited number of claims have been filed. Four cases are currently pending, involving allegations of discrimination based on trade union membership, gender, and disability. The success and potential media coverage of these actions will have an impact on the litigation.

US: Employment class action litigation is ubiquitous in the United States. A 2025 Carlton Fields study on class action litigation reveals that employment claims represented the largest percentage of class action lawsuits that were filed. For instance, in 2025, 1,225 class actions involving employment-related claims were filed in federal courts across the United States. We anticipate this trend to continue.

LOOKING AHEAD

As France’s class action regime continues to expand, it is likely to draw increasing influence from the US model while retaining its distinct procedural safeguards. Employers operating in France should anticipate a more active litigation landscape and adapt their compliance strategies accordingly.