Seyfarth Shaw's 9th Annual Workplace Class Action Report: Looking Back at 2012 and Ahead to 2013

The past twelve months marked a landmark year for complex employment-related disputes and created a number of lasting changes in employment law that will continue to alter the legal landscape and litigation strategies for employers in 2013. These changes were driven by a dramatic “halo effect” from the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes.

Wal-Mart’simpact on changing Rule 23 class certification standards dominated the legal landscape in 2012 and was cited by lower courts an astounding 541 times in 2012, generating a tidal wave of new class certification rulings and related decisions on a wide variety of class action issues.

For an interactive analysis of 2012 decisions and emerging trends, please join us for our annual webinar offered in conjunction with the publication of our 9th Annual Workplace Class Action Report. The Report's author, partner Gerald L. Maatman, Jr., along with partners Lorie Almon and Ian Morrison, chairs of our wage & hour and ERISA class action groups, will cover a changed national landscape in workplace litigation.

Other significant developments to be addressed include:

• The Supreme Court’s opinions in Wal-Mart and AT&T Mobility, LLC v. Concepcion had a profound influence in shaping the course of class action litigation rulings in 2012, beginning a new wave of creative case law theories that will continue to evolve and impact employers in the defense of their cases in 2013.
• Government enforcement remained “white hot” in 2012 with the U.S. Equal Employment Opportunity Commission (EEOC) garnering a four-fold increase in recoveries against employers for its systemic discrimination investigations. Government enforcement activity is expected to accelerate even more in 2013.
• Wal-Martsignificantly influenced settlement strategies for workplace class actions in 2012, as employers settled fewer employment discrimination class actions and at a fraction of the levels experienced from 2006 to 2011 (a total of $48.65 million for the top ten settlements in 2012 compared to $346.4 million in 2010 prior to the Wal-Mart ruling in 2011). Against this backdrop, the plaintiffs’ class action bar is “re-booting” its approach to class litigation and this trend may reverse itself in 2013.
• The sluggishness of the U.S. economy during 2012 fueled more class action and collective class action litigation. This trend is expected to continue in 2013 as businesses retool operations in an improving economy and the Obama Administration renews an emphasis on enforcing workplace laws.

 

Wage & hour litigation continued to outpace all other types of workplace class actions in 2012, led by 7,672 Fair Labor Standards Act (FLSA) lawsuits filed this past year, an increase of 893 cases from the then record levels in 2011. These figures are expected to grow again in 2013, as well wage & hour class action litigation in employee-friendly state courts like California and New York.