Workplace class action litigation is in a state of flux. The events of the past year in the workplace class action world demonstrate that the array of bet-the-company litigation issues that businesses and clubs face are evolving on a landscape that is continuing to undergo significant change.
At the same time, governmental enforcement litigation remains “white hot” and regulatory oversight of workplace issues continues to be a priority, thereby challenging businesses and clubs to integrate their litigation and risk mitigation strategies to navigate these exposures. These trends in 2013 set the table for continued change in the workplace class action world in 2014.
By almost any measure, 2013 was a year of evolving changes for workplace class action litigation. The U.S. Supreme Court issued several class action rulings in 2013 that impacted all varieties of complex litigation in a profound manner. More than any other development in 2013, the decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), continued to have a wide-ranging impact on virtually all types of class actions pending in both federal and state courts throughout the country. In many respects, Wal-Mart was the “800 pound gorilla” in courtrooms in 2013 as litigants argued and judges analyzed class certification issues. Rule 23 decisions in 2013 in large part pivoted off of Wal-Mart, and leverage points in class action litigation increased or decreased depending on the manner in which judges interpreted and applied Wal-Mart. Further,Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) fueled defense arguments by underpinning attacks on class certification in a wide range of contexts. These arguments met mixed success for employers.
Against this backdrop, the plaintiffs’ class action employment bar filed and prosecuted significant class action and collective action lawsuits against employers in 2013. In turn, employers litigated an increasing number of novel defenses to these class action theories, fueled, in part, by the new standards enunciated in Wal-Mart and Comcast Corp. Federal and state courts addressed a variety of new theories and defenses in ruling on class action and collective action litigation issues. The impact and meaning of “Wal-Mart issues” and “Comcast Corp. issues” were at the forefront of these case law developments.
“Headlines” In Workplace Class Action Litigation In 2013
While shareholder and securities class action filings and settlements witnessed a sharp downtick to record lows in 2013, employment-related class action filings remained relatively flat but with a pronounced increase in certain categories, especially wage & hour cases. Anecdotally, surveys of corporate counsel confirm that workplace litigation—and especially class action and multi-plaintiff lawsuits—remains one of the chief exposures driving corporate legal budget expenditures, as well as the type of legal dispute that causes the most concern for their companies. The prime concern in that array of risks is now wage & hour litigation exposure.
By the numbers, workplace litigation filings stayed constant over the past year, while wage & hour cases increased. By the close of the year, ERISA lawsuits totaled 7,279 (down as compared to 7,908 in 2012), FLSA lawsuits totaled 7,882 (up significantly as compared to 7,672 in 2012), and employment discrimination filings totaled 12,311 lawsuits (a decrease from 14,260 in 2012). In terms of employment discrimination cases, employers can expect a significant jump in the coming year, as the charge number totals at the EEOC in 2011 and 2012 were the highest in the 48-year history of the Commission; due to the time-lag in the period from the filing of a charge to the filing of a subsequent lawsuit, the charges in the EEOC’s inventory will become ripe for initiation of lawsuits in 2014.
Implications Of These Developments For 2014
The lesson to draw from 2013 is that the private plaintiffs’ bar and government enforcement attorneys are apt to be equally, if not more, aggressive in 2014 in bringing class action and collective action litigation against employers. Clubs as employers are particularly vulnerable to governmental enforcement litigation.
These novel challenges demand a shift of thinking in the way employers formulate their strategies. As class actions and collective actions are a pervasive aspect of litigation in America, defending and defeating this type of litigation is a top priority for employers. Identifying, addressing and remediating class action vulnerabilities, therefore, deserves a place at the top of your priorities list for 2014.
For more information on class action litigation, click here to order a free copy of Seyfarth Shaw’s 10th Annual Workplace Class Action Litigation Report. The WCAR analyzes class action rulings on a circuit-by-circuit and state-by-state basis. The Report is divided into chapters on leading class action settlements, federal law rulings, and state law rulings and it is called the “definitive source of information on employment class action litigation by EPLiC Magazine and a resource that “no practitioner who deals with employment claims . . . should be without.”
Gerald L. Maatman, Jr. is a partner of Seyfarth Shaw LLP, a leading national employment and labor law firm, and resident in the firm’s Chicago and New York offices. He has a primary emphasis in his practice on defending employers sued in employment discrimination class actions, wage & hour collective actions, EEOC pattern or practice lawsuits, and civil rights/denial of access class actions brought in federal and state courts throughout the United States. Mr. Maatman is the former general counsel and President of the Chicago District Golf Association, and has represented numerous private clubs in litigation.
Lily M. Strumwasser is a member of Seyfarth Shaw LLP’s Labor and Employment department. She focuses on defending employers sued in employment discrimination single-plaintiff and class actions, wage & hour collective actions, and EEOC pattern or practice lawsuits. She defends employers against claims arising under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), and the Fair Labor Standards Act (FLSA).