Workplace litigation has changed and been molded by the U.S. Supreme Court during 2016 and 2017. In fact, “[t]he environment for employment litigation has more than ever been shaped by Supreme Court judges and settlements for wage and hour class actions rose in 2016 while those for other employment-related claims fell, according to a report on workplace class action litigation.” Insurance Journal, “6 Key Trends in Workplace Litigation for 2017,” Jan. 13, 2017, at http://www.insurancejournal.com/news/national/2017/01/13/438801.htm (last visited Mar. 29, 2017). The Supreme Court analyzed several different cases, and this article explores the themes that have emerged and the legal issues currently present in employment lawsuits.
To assess the emerging themes, Seyfarth Shaw conducted a “Workplace Class Action Litigation Report,” which “analyzed 1,331 class action rulings on a circuit-by-circuit and state-by-state basis to capture those themes and others from 2016 and to identify emerging litigation trends facing U.S. companies in 2017.” Id. The report made several thematic observations, each of which has a unique implication for employment cases. Specifically:
(1). Class Action Trends are Shaping Litigation: According to one publication, “[c]lass action dynamics increasingly have been shaped and influenced by recent rulings of the U.S. Supreme Court. Over the past several years, the Supreme Court has accepted more cases for review and issued more rulings – than ever before that have impacted the prosecution and defense of class actions and government enforcement litigation.” Id. Perhaps more importantly, plaintiffs’ attorneys “scored several significant victories in 2016 that will make class actions easier to prosecute and result in more certification orders.” Id. For a phenomenon like this to occur, expert witnesses play an indispensable role—class certification and workplace litigation experts are often the ones who ultimately sway a court to take a particular party’s side and decide whether or not to certify a given class. The way class action trends have helped shape workplace litigation is further demonstrated by the fact that “[f]ederal and state courts issued more favorable class certification rulings for the plaintiffs’ bar in 2016 than in past years. However, employers did better in decertification motions than in past years.” Id. This trend indicates that class certification and workplace experts on both sides of the equation have had successes.
(2). Changes in Monetary Issues: Two things have transpired of late: First, the financial “value of the top employment-related class action settlements declined significantly in 2016 after they reached all-time highs in 2014 and 2015.” Id. And second, in contrast, “wage and hour settlements increased significantly.” Id. These changes also indicate the presence of expert witnesses. Whenever the monetary value of a lawsuit is at issue, it is a given that economic and employment experts are helping courts to assess damages. Also of interest is the fact that “[w]age and hour certification decisions in 2016 increased geometrically as compared to last year. This manifests the focus of the plaintiffs’ bar in wage and hour compliance issues.” Id. This phenomenon underscores the important role that experts have played in such litigation.
(3). Government Employment Lawsuits: Of note too are cases in which the federal government is involved in some type of case as a plaintiff, such as when the Equal Employment Opportunity Commission (EEOC) alleges employment discrimination, or when the Department of Labor (DOL) argues that a child labor law or minimum wage law has been violated. In cases like these, “[g]overnment enforcement lawsuits brought by the Department of Labor and the Equal Employment Opportunity Commission continued the aggressive litigation programs of both agencies, but by sheer numbers of cases, their enforcement activities were arguably limited in their effectiveness, at least when measured by lawsuit filings and recoveries compared to previous years.” Id. This observation is interesting in two regards. First, it suggests that since these agencies’ lawsuits were myriad and aggressive, consulting and testifying employment experts must have been at those entities’ disposal to help provide assistance in investigating and trying cases. However, the limited effectiveness of these cases suggests that perhaps the defendants in these cases also had sophisticated and qualified experts who were able to help them dodge certain bullets that they otherwise would have had to grapple with.
Several key trends have emerged with respect to workplace lawsuits in 2016 and 2017. Each of these trends suggests that regardless of what has transpired, expert witnesses have played and will continue to play a pivotal role in determining the volume and outcomes of employment litigation.