18th Annual Workplace Class Action Report - 2022 Edition

22 Annual Workplace Class Action Litigation Report: 2022 Edition In total, courts have issued 65 opinions on motions to dismiss class action claims related to COVID-19 in 2021, and have granted 82% of those motions in whole or in part. The following graphic shows this trend: In sum, the pandemic has continued to spike class actions (of all varieties) and litigation over all types of workplace issues. To date, however, defendants have achieved high rates of success in defeating these claims by overcoming motions for preliminary injunction and by prevailing on motions to dismiss in whole or part. Employers are apt to see these workplace class actions continue to expand and morph in 2022 as the pandemic endures. (v) The Continuing Impact Of Arbitration Workplace arbitration programs continued to have a profound impact on workplace class action litigation in 2021. Such programs influenced the nature of class action litigation filed and shifted the types of claims asserted as the plaintiffs’ bar continued to find ways to pivot around such obstacles. As employers clawed for cover from the increasing weight of workplace class action litigation in recent years, workplace arbitration has continued to gain traction, aided by the U.S. Supreme Court’s transformative ruling in Epic Systems Corp. v. Lewis , 138 S. Ct. 1612 (2018). Epic Systems reaffirmed that the Federal Arbitration Act (FAA) requires courts to enforce agreements to arbitrate according to their terms, including mandatory agreements that provide for individual proceedings and include class action waivers. Bolstered by such precedents, more than half of non-union, private-sector employers and more than two-thirds of large employers have adopted mandatory arbitration agreements. Such programs have continued to shift class action litigation dynamics in critical ways as they have led to more front-end attacks on proposed class and collective actions and, as the result of such attacks, to the defense bar dismantling more workplace class and collective actions by fracturing those proceedings and diverting them into individual arbitrations. Workplace arbitration agreements with class action waivers were one of the most potent tools of employers to manage their risk of class action litigation in 2021. In the time period since the Supreme Court decided Epic Systems , businesses facing class action lawsuits have filed more motions to compel arbitration with a higher rate of success than in the years before this landmark decision.