18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 27 the systematic application of laws and court procedures in an unfair and unbalanced manner . 10 The ATRA described the Golden State as the “No. 1 Judicial Hellhole thanks to its relentless pursuit of liability-expanding principles.” 11 E. Likely Trends For The Future Of Workplace Class Actions In 2022 The developing trends in workplace class action litigation are continuing to evolve, morph, and adjust to the modern realities of the American workplace. These trends require corporate counsel to plan and reorder their compliance strategies to stay ahead of and mitigate these risks and exposures. So, what can corporate counsel expect in 2022? The COVID-19 pandemic is likely to continue to define the workplace in 2022, as businesses start the year under the shadow of a healthcare crisis that has changed the nature, location, and manner of work for many individuals. The pandemic likely will continue to inspire class actions of myriad varieties and litigation over various types of workplace issues. As employers continue to reopen their businesses, employers are apt to see workplace class action theories expand and morph in the wake of COVID-19. The ruling of the Supreme Court in Epic Systems in 2018 is also apt to continue to cast a long shadow in 2022. In authorizing class action waivers in mandatory workplace arbitration agreements, the ruling provides employers with a powerful litigation tool to ameliorate the risks of costly class and collective action litigation. Given the power of such defense, the debate for 2022 is likely to become the scope of legislative action aimed at reversing this precedent. The growing legislative trend to protect individual privacy and personal data in the employment context is likely to generate more class action litigation in 2022. States like Illinois have continued to see an onslaught of class actions against employers for breaches of privacy rights, as well as mishandling of personal information and biometric data. State laws regarding data breaches and individual privacy are apt to fuel the growth of these types of class actions in 2022. Based on these evolving trends, we anticipate significant developments in the coming year relative to certification rulings in employment discrimination and ERISA class actions, more aggressive governmental enforcement suits, and continuing growth in wage & hour litigation, both in courtrooms and in arbitrations. ERISA Litigation – As in 2020, the pandemic did little to slow the tide of ERISA class action filings challenging defined contribution plan (401(k) and 403(b) plan) fees and investments in 2021. While the number of filings dipped slightly from 2020, the filed lawsuits continue to target plans of all sizes. Plaintiffs continue to refine their legal theories and pleading strategies to keep cases alive past motions to dismiss. Repeated waves of 401(k) fee litigation have brought more than just litigation headaches for employers; the significant exposure presented by these cases has caused many fiduciary liability insurers to make significant policy changes that make coverage more expensive and more difficult to obtain. Employers should anticipate a watershed moment in 2022 for defined contribution fee and investment litigation. The Supreme Court is expected to issue its decision in Hughes v. Northwestern University , 141 S. Ct. 2882 (2021), in which it likely will clarify the pleading burdens that plaintiffs face in maintaining these cases. A defense 10 The ATRA Foundation’s 2021 Report, available at https://www.judicialhellholes.org/wp- content/uploads/2021/12/ATRA_JH21_layout_FINAL.pdf 11 Id. at 1. According to the ATRA report, the “eight worst” jurisdictions for employers to be sued in 2021 were, in order: (1) California; (2) New York; (3) Georgia; (4) Pennsylvania; (5) Illinois; (6) Louisiana; (7) Missouri; and (8) South Carolina. Id. at 1-2.