18th Annual Workplace Class Action Report - 2022 Edition

30 Annual Workplace Class Action Litigation Report: 2022 Edition complete, the efforts on this front stalled at the Commission. The EEOC may dust off this effort for 2022 and examine the most efficient means to begin the collection of this data. Fourth, the EEOC may continue its focus on national origin discrimination. Such discrimination has become an increasing target of EEOC enforcement activity, and the EEOC has expressed in a number of places that it is concerned about the impact that global phenomena can have on worker relations in the United States. The COVID-19 pandemic could lead to increased concerns about national origin discrimination against Asian- Americans, as cautioned by former Chair Dhillon in a statement issued early in the COVID-19 pandemic. The EEOC’s announced interest in monitoring this issue may precede a rise in enforcement and litigation on this basis. Wage & Hour Class Action Litigation – As with all other areas of employment litigation, COVID-19 affected parties embroiled in litigation under the FLSA and its state law analogues and likely will continue to influence wage & hour litigation trends in 2022. Following what many experienced as a brief hiatus in 2020 in class and collective action litigation as courts closed and judges adapted to remote proceedings, most began to see proceedings ramp back up in 2021. Courts that had slowed hearings and rulings on pending motions picked up their pace. Parties that had held off on settlement discussions and mediations came together, many finding that virtual mediations could be effective. Anecdotal evidence suggests that plaintiffs’ lawyers were fast to seek deals after the pandemic-fueled settlement drought of the year prior. Those same lawyers recommenced their prolific filing of cases across the country. A handful of well-heeled plaintiffs’ firms filed hundreds of suits against employers in the oil, gas, and energy sectors of the U.S. economy, after the Fifth Circuit ruled in Hewitt v. Helix Energy Solutions, Inc. , 983 F.3d 789 (5th Cir. 2020), that highly compensated employees paid on a day-rate basis do not satisfy the FLSA’s minimum wage and overtime exemptions (a petition for Supreme Court review, however, is likely). Other plaintiffs’ firms began filing lawsuits under state and federal pay laws seeking recovery for wages underpaid or unpaid because of pandemic-related practices. For example, a handful of lawsuits claimed that employees working remotely because of the pandemic were forced in one way or another to work off-the-clock. Others claimed that bonuses and other incentive payments made to employees because of the risks associated with working during the pandemic were improperly excluded from regular rate and overtime premium calculations. These and similar lawsuits are consistent, too, with what appeared to be a loosely formed trend of experienced wage & hour lawyers focusing on uniform pay, timekeeping, meal periods, rest breaks, and similar practices where damages for an individual plaintiff might be low, but a collective-wide or class-based recovery might justify substantial attorneys’ fees. We expect these trends to continue in 2022, with a focus on companies who do not pay employees for time spent on COVID testing or reimburse them for the actual costs of testing. The plaintiffs’ bar also strived in 2021 to prove again that they are willing to litigate (or arbitrate) their cases when class or collective action certification is either limited or not available. Plaintiffs compelled to arbitration, for example, before or as a consequence of motions seeking conditional certification, filed thousands of arbitration claims against national employers, prompting commentators and advocates to coin the term “mass arbitration.” Employers fractured collective actions by arguing that the decision in Bristol Myers Squibb Co. v. Superior Court , 137 S. Ct. 1773 (2017), wherein the U.S. Supreme Court declined to find specific personal jurisdiction over a defendant for purposes of adjudicating mass-action claims that arose outside of the forum, foreclosed the inclusion of out-of-forum party plaintiffs. This resulted in firms seeking to transfer potential collective actions to a defendant’s home jurisdiction or filing rafts of “me-too lawsuits” in other forums on behalf of the excluded plaintiffs.