Seyfarth has released its 18th annual edition of the Workplace Class Action Litigation Report, which is recognized as the nation’s most comprehensive guide to workplace-related complex litigation. In its largest edition ever, Seyfarth analyzed a record number of 1,607 class action rulings on a circuit-by-circuit and state-by-state basis to identify key themes from 2021 and emerging litigation trends facing US companies in 2022.
Over the span of its 18 years, Seyfarth’s Report has developed the legal industry’s largest class action database featuring analyses of over 24,000 cases. Described as the “definitive source of information on employment class action litigation” and a resource that “no practitioner who deals with employment claims. . . should be without” by Employment Compliance Magazine, Seyfarth’s Report is the sole compendium in the US dedicated exclusively to workplace class action litigation. This year’s 844-page Report is the “go to” research and resource guide for businesses and their corporate counsel facing complex litigation in the coming year.
“In the face of ongoing pandemic challenges, 2021 produced the largest workplace class action settlement numbers in the 18-year history of our analyses,” said Seyfarth partner and author of the annual Report, Gerald L. Maatman, Jr. “The plaintiffs’ bar capitalized on a recovering economy and aligned priorities with the new Biden Administration to secure a record financial haul in 2021. As the defense based on arbitration agreements with class action waivers faces increased attacks across the country, employers can look at this past year as a precursor to new legal challenges and an explosion of class and collective actions in 2022.”
The Seyfarth Report details five key employment litigation trends for corporations in 2022:
- Highest Numbers In Workplace Class Action Settlements Ever – The past year saw record class action settlement numbers – $3.62 billion in 2021 as compared to $1.58 billion in 2020 and $1.34 billion in 2019. Many thought the on-going COVID-19 pandemic would depress the pace and size of settlements in the new “cash-is-king” approach to the business cycle. Instead, workplace class action litigation defied those odds and demonstrated that the plaintiffs’ bar converted case filings into the highest level of settlement numbers ever.
- Government Enforcement Litigation Ramped Up – The DOL, OFCCP, and the EEOC under the Biden Administration ramped up their litigation enforcement programs and served notice that employers are well-served to focus on compliance with workplace laws and regulations to steer clear of government-initiated investigations and lawsuits. The transformation of risk for governmental enforcement litigation under the Biden Administration is markedly different for employers used to the hands-off, laid back approach of the prior administration.
- Wage & Hour Litigation Remains The Sweet Spot For Plaintiffs – Based on sheer volume and statistical numbers, workers scored the most success in securing certification of wage & hour class and collective actions in 2021 as compared to other areas of workplace law. This state of affairs is expected to explode in 2022, with a more friendly DOL that makes wage theft its enforcement priority. Statistically speaking, the plaintiffs’ bar converted case filings into successful certification rulings at a rate of 81%, the second highest level ever in over two decades. In turn, successful class certification motions in the employment discrimination context were at 72% and in the ERISA space at 57%. By comparison to 2020, the success factor for certification in wage & hour was nearly identical (84% in 2020), while up for employment discrimination (42% in 2020) and down for ERISA (69% in 2020).
- The COVID-19 Pandemic’s Continuing Impact On Workplace Class Action Litigation – The ongoing COVID-19 pandemic impacted all aspects of life, including the legal system in general and workplace class actions in particular. The pandemic spiked more class actions (of all varieties) and for all types of workplace issues. With the roll out of return-to-work programs and vaccine mandates in the fourth quarter of 2021, class actions by states, employee advocates, unions, and employer-groups were filed in record numbers.
- Arbitration Class Action Waiver Defense Under Increasing Attack – Workplace class action litigation in 2021 was fueled by the change from red to blue in the White House, expansion of workers’ rights, increased regulation of businesses, and aggressive enforcement of workplace laws. With that platform, advocates for workers and labor are doubling-down on efforts to overturn the regime of workplace arbitration agreements with class/collective action waivers established by Epic Systems v. Lewis, 138 S.Ct. 1612 (2018). Employers secured a broad array of victories in 2021 in limiting workplace class actions through arbitration defenses, but the future remains anything but clear as to whether that approach will remain viable in the face of attacks on the Epic system.
To view additional videos, charts, and data from the Workplace Class Action Litigation Report please visit www.workplaceclassactionreport.com, where you may also request a copy. Available as a downloadable eBook, the Seyfarth Report is fully searchable, compatible with all major devices, allows readers to bookmark useful sections for easy future reference, and includes a number of other features, such as note-taking, highlighting and more.