18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 31 Following the Fifth Circuit’s landmark decision this past year in Swales v. KLLM Transport Services, LLC , 985 F.3d 430 (5th Cir. 2021) – holding that courts in the Fifth Circuit must consider all probative evidence, even merits evidence, at the early stage of collective action litigation before authorizing the distribution of notice to potential members advising them of their rights to opt-in – plaintiffs’ lawyers who wished to avoid that heightened evidentiary standard chose to file their own actions in jurisdictions outside the Fifth Circuit. At the same time Swales failed to gain traction outside of the Fifth Circuit. Regulatory activity in 2021 also promises to spur litigation in 2022. The DOL withdrew Trump-era regulations defining independent contractors and the circumstances under which companies may be considered joint employers and, effective December 28, 2021, reinstituted the so-called 80/20 rule on non-tipped work in determining whether employees qualify for payment of the tip credit wage. All of this harkens an active and sophisticated plaintiffs’ bar that is prepared to continue pursuing wage & hour claims nationally, whether on an individual, class, or collective action, or in arbitration, on a large scale. We expect these trends from 2021 to continue in 2022 and for wage & hour litigation to be as massive as ever. F. Conclusion In the ever-changing economy and patchwork quilt of laws and regulations, corporations face new, unique, and challenging litigation risks and legal compliance problems. Adding to this challenge, the one constant in workplace class action litigation is change. Continuing a trend from 2020, 2021 was a year of great change, inside and outside of the workplace. As these issues play out in 2022, additional chapters in the class action playbook will be written. The private plaintiffs’ bar are apt to be equally, if not more, aggressive in 2022 in bringing class action and collective action litigation against employers. They are likely to be aided by new worker-friendly rulemaking emanating from agencies within the executive branch. These novel challenges demand a shift of thinking in the way companies formulate their strategies. As class actions and collective actions are a pervasive aspect of litigation in Corporate America, defending and defeating this type of litigation is a top priority for corporate counsel. Identifying, addressing, and remediating class action vulnerabilities, therefore, deserves a place at the top of corporate counsel’s priorities list for 2022.