Employers’ Alert

Leading employment law firm Seyfarth Shaw LLP has issued its annual Workplace Class Action Litigation Report. The report, written by Seyfarth Shaw partner Gerald L. Maatman Jr., examines 976 class action decisions rendered in the past 12 months by federal and state courts, including private plaintiff and government enforcement actions. It paints a national landscape of employment disputes fueled by an aggressive plaintiffs’ bar, invigorated federal and state enforcement, a sluggish economic recovery, and several groundbreaking rulings by the U.S. Supreme Court in 2011 that are certain to reverberate in the year ahead and beyond.

The Supreme Court’s decision in Wal-Mart Stores v. Dukes, handed down last June, has already been cited more than 260 times in federal and state court opinions, and AT&T Mobility v. Concepcion 215 times-remarkable figures for rulings less than a year old, according to Maatman.

Dukes, which established a new standard for certifying class actions, and Concepcion, which held that federal arbitration law supersedes limitations imposed by individual states, opened the floodgates to class actions, which will continue to evolve in the coming year and affect litigants for years to come.

Workplace collective filings rose on nearly every front in 2011, from Fair Labor Standards Act and ERISA claims to government enforcement actions, even as shareholder and securities actions were largely static.

The Equal Employment Opportunity Commission (EEOC) set a new record with nearly 100,000 new discrimination filings against private-sector employers-an expression, the report notes, of “challenging economic conditions as well as the Obama Administration’s emphasis on aggressive enforcement.” These EEOC charges “will become ripe for initiation of lawsuits in 2012,” Maatman says.

Maatman advises businesses to expect continued aggressiveness by plaintiffs’ lawyers and government attorneys in bringing large, complex cases against employers.

“There has been a significant re-shuffling of the deck as a result of landmark Supreme Court rulings in 2011; the plaintiffs’ bar has quickly adopted new strategies, which calls for equal agility and innovation on the part of companies and defense counsel. Given the pervasiveness of collective and class actions in corporate America, and thus the enormous financial stakes, employers are best served by pro-active planning to determine their potential class action vulnerabilities and prepare strategies to avert full-blown class action litigation,” he warns.

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