18th Annual Workplace Class Action Report - 2022 Edition

10 Annual Workplace Class Action Litigation Report: 2022 Edition Despite the pandemic’s continued impact on court operations and personnel, courts issued more rulings on wage & hour certification issues in 2021 than they issued in each of the past five years. In particular, federal courts issued 298 decisions on FLSA certification and decertification issues in 2021, an increase from the 286 certification rulings issued in 2020, the 267 certification rulings issued in 2019, the 273 certification rulings in 2018, and the 257 certification rulings in 2017. Of these rulings, 279 addressed first-stage motions for conditional certification of wage & hour collective actions under 29 U.S.C. § 216(b), whereas 19 addressed second-stage motions for decertification. Plaintiffs historically have secured a higher rate of success on the former, while employers have secured a higher rate of success on the latter. In 2021, as noted above, plaintiffs achieved an exceptionally high rate of success on first stage conditional certification motions, equal to or higher than the rate they achieved in any year of the past decade aside from 2020. In 2021, Plaintiffs saw their rate of success at 81%, down slightly from their 2020 success rate of 84%, and the same as their 2019 success rate of 81%. Employers, on the other hand, saw their rate of success on decertification motions rise to 53% in 2021, up from 50% in 2020 and 58% in 2019. The analysis of these rulings – discussed in Chapter V of this Report – shows that plaintiffs filed a high predominance of cases against employers in “plaintiff-friendly” jurisdictions such as the judicial districts within the Second and Ninth Circuits. For the second time in a decade, however, rulings were equally or more voluminous out of the Sixth Circuit, which also tended to favor workers over employers in conditional certification rulings. The following map illustrates this trend: Analysis Of FLSA Certification Decisions CIRCUIT COURT D.C. Circuit Court of Federal Claims Conditional Certification Motions Granted 5 47 15 13 13 50 17 17 31 10 5 1 2 Conditional Certification Motions Denied 1 9 5 2 9 7 1 3 8 1 7 0 0 Decertification Motions Granted 0 1 0 0 1 1 1 2 1 0 3 0 0 Decertification Motions Denied 0 1 1 0 2 0 0 1 2 1 0 1 0 Sub-Total: 226 Conditional Certifications Granted / 53 Conditional Certifications Denied 10 Decertification Motions Granted / 9 Decertification Motions Denied The statistical underpinnings of this circuit-by-circuit analysis of FLSA certification rulings is telling in several respects.