18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 25 also thriving. The battle ground is likely to shift in the coming years, as employers create a bulwark against such class-based claims based on Epic Systems, and plaintiffs continue to look for and pursue work-arounds on the judicial as well as the legislative front. D. Complex Employment-Related Litigation Trends In 2021 While class action filings in some areas witnessed an increase in 2021, employment-related class action filings decreased in 2021 as compared to case filing numbers of previous years. By the numbers, filings for employment discrimination, FLSA, and ERISA claims were lower over 2021 as compared to the past five years. Filing patterns in 2021 reflected only the third time in a decade when the number of lawsuit filings decreased across the board in all three categories. The lower numbers likely reflected the impact of the COVID-19 pandemic, as well as the growing prevalence of workplace arbitration agreements by employers, which led the plaintiffs’ bar to assert their claims in arbitration as opposed to file lawsuits. By the close of the year, ERISA lawsuits totaled 4,471 filings (as compared to 5,042 filings in 2020, 5,732 filings in 2019, 6,334 in 2018, 6,695 in 2017, 6,530 in 2016, and 6,925 in 2015), FLSA lawsuits totaled 5,238 filings (as compared to 6,396 filings in 2020, 6,780 filings in 2019, 7,494 in 2018, 7,514 in 2017, 8,308 in 2016, and 8,954 in 2015), and employment discrimination lawsuits totaled 10,350 filings (as compared to 10,801 filings in 2020, 12,255 filings in 2019, 12,488 in 2018, 11,981 in 2017, 11,593 in 2016, and 11,500 in 2015). In terms of employment discrimination cases, however, the potential exists for a significant jump in case filings in the coming year. Racial discrimination issues dominated the news cycles throughout 2021, as the Black Lives Matter movement squarely placed race relations in the national spotlight, and companies moved quickly to roll out politically-tied messaging, to promote diversity and inclusion programs, and to avoid the ire of social media. Inevitably, litigation filings are apt to increase as a result of this focus. By the numbers, FLSA collective action litigation filings in 2021 far outpaced other types of employment-related class action filings because virtually all FLSA lawsuits are filed on a collective basis. From 2000 through 2015, lawsuit filings reflected year-after-year increases in the volume of wage & hour litigation pursued in federal courts. Statistically, wage & hour filings have increased by over 450% in the last 15 years. In 2021, FLSA filings decreased for only the sixth time in two decades. This trend is illustrated by the following chart: