Labor & Employment

coronavirus

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At least 1,005 workplace lawsuits filed in 2020 stemmed from the COVID-19 pandemic, and more are expected in 2021, according to Seyfarth Shaw’s 17th Annual Workplace Class Action Litigation Report.

The lawsuits were filed across 47 states and 28 industries, according to the report, available by request here. Top industries facing suits were health care, business services, manufacturing, retail, government and assisted living.

Law360 and Law.com have coverage; a press release is here.

The most common issue stemmed from firing, cited in 690 lawsuits, followed by retaliation and safety compliance, cited in 190 lawsuits. Plaintiffs relied on five primary theories in the litigation, Seyfarth’s report said. They are:

• Failure to provide a safe workplace.

• Discrimination, particularly relating to disability and age.

• Family leave violations under the Family and Medical Leave Act, as well as other laws.

• Retaliation and whistleblower claims, often in connection with a workplace safety or leave issue.

• Wage-and-hour issues arising out of the COVID-19 pandemic.

Courts differed on whether plaintiffs alleging a failure to protect could state a viable claim, the report said. Courts also differed on whether the plaintiffs could bring their claims as class actions.

“As the pandemic took hold, the plaintiffs’ bar retooled their class action theories to match,” the report said. “As businesses scrambled to confront the realities of stay-at-home and closure orders, their actions drew claims that, for instance, layoffs caused an unintended disparate impact on protected groups or failed to comply with WARN Act requirements. As businesses rushed to adopt safety requirements, their actions drew claims that they failed to pay minimum wage or overtime for compensable work hours, failed properly to reimburse employee expenses, failed to provide leave required under the patchwork of state and federal laws enacted in response to the pandemic, or failed to go far enough in protecting workers from COVID-19. Employers are apt to see these workplace class actions expand and morph as businesses restart operations in the wake of COVID-19.”

The report also found:

• Settlement numbers went up in 2020, with the top 10 settlements in employment-related class action categories totaling $1.58 billion. The number was $1.34 billion in 2019 and and $1.32 billion in 2018. The report editor, Seyfarth Shaw class action litigation practice group co-chair Gerald Maatman Jr., told Law.com that the finding was “very surprising and counterintuitive.”

• Wage-and-hour litigation remained “the sweet spot” for the plaintiffs’ class action bar. Workers were most successful in securing class action certification in wage-and-hour suits. Out of 286 wage-and-hour class certification decisions in 2020, 84% granted certification. Maatman told Law.com that the finding was “surprising, if not startling.” In the 17 years that the law firm has tracked the numbers, Maatman said, “the success rate had never, ever approached such a level. It kind of confirms what we’re seeing, which is a migration of skilled plaintiffs class action lawyers into the wage-and-hour space and lots of cases being filed.”

• Government agencies in 2020 filed fewer lawsuits to enforce workplace laws than ever before. Only 94 lawsuits were filed in 2020 by the U.S. Department of Labor, the U.S. Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs, compared to 144 lawsuits in 2019. Yet settlement numbers increased in government suits.

• With a change in presidents, enforcement of workplace laws is likely to become more aggressive.

See also:

ABAJournal.com: “What types of lawsuits were filed over COVID-19 in 2020?”