Access to justice in employment law remains an elusive promise for the vast majority of American workers. While an array of federal and state laws purport to protect workers, the mechanisms for enforcing those rights are often inaccessible, rendering them meaningless.
Administrative agencies and state equivalents tasked with investigating discrimination and wage violations, for example, are often chronically underfunded and subject to political erosion. As demonstrated by recent changes at the Equal Employment Opportunity Commission and National Labor Relations Board, entire enforcement wings can be defanged or hollowed out through attrition and budget cuts, or through the selective non-enforcement.
Even sympathetic political leadership and well-meaning civil servants can buckle under the volume of claims. In the not-too-distant past, claims languished at the Illinois Human Rights Commission for years, often taking over a decade to adjudicate.
Many employment laws allow employees to file their claims directly in court, but the cost of retaining private counsel remains prohibitive. According to the Legal Services Corporation (“LSC”) 92% of low-income Americans receive inadequate or no legal help when needed. See https://justicegap.lsc.gov/resource/executive-summary. Not surprisingly, the Trump Administration’s FY 2026 budget proposes eliminating the LSC altogether, which supports civil legal aid organizations nationwide and helps 5 million low-income Americans each year.
Employment claims are complex, fact-intensive, and vigorously defended by employers with ample resources. The reshaping of the federal judiciary that started under Richard Nixon resulted in a relaxed summary judgment standard, upending the Seventh Amendment and robbing workers of the constitutional right to be heard by a jury of their peers. This has incentivized defense counsel to reflexively file complex and burdensome dispositive motions.
The only durable and structurally sound remedy for the growing justice gap in employment law is the expansion of robust fee-shifting provisions for all employment law claims – similar to those contained in the federal Fair Labor Standards Act or the Illinois Minimum Wage Law – which require employers that violate the law to pay a prevailing employee’s attorneys’ fees and costs. Fee shifting incentivizes attorneys to represent individuals with viable claims but little resources on a contingent-fee basis, and disincentivizes the filing of meritless claims.
The key language for this legislation at the State level could be as simple as “Any current or former employee may bring a private right of action to enjoin or otherwise enforce any statute related to the employment relationship. A prevailing employee shall be entitled to recover attorneys’ fees and costs, in addition to all other remedies available at law or in equity.”
Fee-shifting ensures that employees with meritorious claims are able to obtain competent representation, filters out non-meritorious claims, and ensures that the pursuit of justice is not limited to the wealthy. Without meaningful access to counsel, statutory rights are illusory. Courts, legislatures, and the bar must reaffirm their commitment to robust fee-shifting in favor of prevailing employees as the cornerstone of access to justice in the workplace.
By Alejandro Caffarelli, Caffarelli & Associates Ltd.
