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Annual Workplace Class Action Litigation Report: 2016 Edition Seyfarth Shaw LLP

Important Disclaimer

The material in this report is of the nature of general commentary only. It is not offered as legal advice on any specific issue or matter and should not be taken as such. The views expressed are exclusively those of the authors. The authors disclaim any and all liability to any person in respect of anything and the consequences of anything done or omitted to be done wholly or partly in reliance upon the contents of this report. Readers should refrain from acting on the basis of any discussion contained in this publication without obtaining specific legal advice on the particular facts and circumstances at issue. Any sort of comprehensive legal advice on any particular situation is beyond the scope of this report. While the authors have made every effort to provide accurate and up-to-date information on laws, cases, and regulations, these matters are continuously subject to change. Furthermore, the application of the laws depends on the particular facts and circumstances of each situation, and therefore readers should consult with an attorney before taking any action. This publication is designed to provide authoritative information relative to the subject matter covered. It is offered with the understanding that the authors are not engaged in rendering legal advice or other professional services.

• From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.

Writer’s direct phone (312) 460-5893

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Seyfarth Shaw LLP

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fax (312) 460-7000

www.seyfarth.com

January 2016

Dear Clients:

The last few years have seen a transformation in class action and collective action litigation involving workplace issues. This came to a head in 2014 and 2015 with several major class action rulings from the U.S. Supreme Court. Likewise, the present economic climate is likely to fuel even more lawsuits. The stakes in these types of employment lawsuits can be extremely significant, as the financial risks of such cases are enormous. More often than not, class actions adversely affect the market share of a corporation and impact its reputation in the marketplace. It is a legal exposure which keeps corporate counsel and business executives awake at night.

Defense of corporations in complex, high-stakes workplace litigation is one of the hallmarks of Seyfarth Shaw’s practice. Through that work, our attorneys are on the forefront of the myriad of issues confronting employers in class action litigation.

In order to assist our clients in understanding and avoiding such litigation, we are pleased to present the 2016 Edition of the Seyfarth Shaw Annual Workplace Class Action Litigation Report. This edition, authored by the class action attorneys in our Labor & Employment Department, contains a circuit-by-circuit and state-by-state review of significant class action rulings rendered in 2015, and analyzes the most significant settlements over the past twelve months in class actions and collective actions. We hope this Annual Report will assist our clients in understanding class action and collective action exposures and the developing case law under both federal and state law.

Very truly yours,

J. Stephen Poor Chairman, Seyfarth Shaw LLP

Author’s Note

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Our Annual Report analyzes the leading class action and collective action decisions of 2015 involving claims against employers brought in federal courts under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the Fair Labor Standards Act (“FLSA”), the Employee Retirement Income Security Act (“ERISA”), and a host of other federal statutes applicable to workplace issues. The Report also analyzes class action and collective action rulings involving claims brought against employers in all 50 state court systems, including decisions pertaining to employment laws, wage & hour laws, and breach of employment contract actions. The key class action and collective action settlements over the past year are also analyzed, both in terms of gross settlement dollars in private plaintiff and government-initiated lawsuits as well as injunctive relief provisions in consent decrees. Finally, the Report also discusses important federal and state court rulings in non-workplace cases which are significant in their impact on the defense of workplace class action litigation. In total, there are 1,314 decisions analyzed in the Report.

The cases decided in 2015 foreshadow the direction of class action litigation in the coming year. One certain conclusion is that employment law class action and collective action litigation is becoming ever more sophisticated and will continue to be a source of significant financial exposure to employers well into the future. Employers also can expect that class action and collective action lawsuits increasingly will combine claims under multiple statutes, thereby requiring the defense bar to have a cross-disciplinary understanding of substantive employment law as well as the procedural peculiarities of opt-out classes under Rule 23 of the Federal Rules of Civil Procedure and the opt-in procedures in FLSA and ADEA collective actions.

This report represents the collective contributions of a significant number of our colleagues at Seyfarth Shaw LLP. We wish to thank and acknowledge those contributions by Richard L. Alfred, Lorie Almon, Raymond C. Baldwin, Brett C. Bartlett, Edward W. Bergmann, Holger Besch, Daniel Blouin, Michael J. Burns, Robert J. Carty, Jr., Mark A. Casciari, John L. Collins, Ariel Cudkowicz, Catherine M. Dacre, Joseph R. Damato, Christopher J. DeGroff, Rebecca DeGroff, Pamela Devata, Ada Dolph, Alex Drummond, William F. Dugan, Noah A. Finkel, Timothy F. Haley, Heather Havette, Eric Janson, David D. Kadue, Lynn Kappelman, Raymond R. Kepner, Daniel B. Klein, Mary Kay Klimesh, Ronald J. Kramer, Richard B. Lapp, Richard P. McArdle, Jon Meer, Ian H. Morrison, Camille A. Olson, Andrew Paley, Katherine E. Perrelli, Kyle Peterson, Thomas J. Piskorski, Jennifer Riley, David Ross, Jeffrey K. Ross, David J. Rowland, Frederick T. Smith, Amanda Sonneborn, Diana Tabacopoulos, Joseph S. Turner, Annette Tyman, Peter A. Walker, Timothy M. Watson, Robert S. Whitman, Tom Wybenga, and Kenwood C. Youmans.

Our goal is for this Report to guide clients through the thicket of class action and collective action decisional law, and to enable corporate counsel to make sound and informed litigation decisions while minimizing risk. We hope that you find the Seyfarth Shaw Annual Workplace Class Action Litigation Report to be useful.

Gerald L. Maatman, Jr./General Editor

Co-Chair, Class Action Litigation Practice Group of

Seyfarth Shaw LLP

January 2016

Guide To Citation Formats

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As corporate counsel utilize the Report for research, we have attempted to cite the West bound volumes wherever possible (e.g., Brown, et al. v. Nucor Corp., 785 F.3d 895 (4th Cir. May 11, 2015)). If a decision is unavailable in bound format, we have utilized a LEXIS cite from its electronic database (e.g., Chen-Oster, et al. v. Goldman, Sachs & Co., 2014 U.S. Dist. LEXIS 29813 (S.D.N.Y. Mar. 10, 2015)), and if a LEXIS cite is not available, then to a Westlaw cite from its electronic database (e.g., Harris, et al. v. Amgen, Inc., 2015 WL 3372373 (9th Cir. May 26, 2015)). If a ruling is not contained in an electronic database, the full docketing information is provided (e.g., Lehman, et al. v. Warner Nelson, Case No. 13-CV-1835 (W.D. Wash. April 24, 2015)).

Search Functionality

This Report is fully searchable. Case names, Rule 23 terms, and class action topics can be searched by selecting Edit and then Find (or Ctrl+F), and then by typing in the word or phrase to be searched, and then either selecting Next or hitting Enter.

eBook Features The 2016 Workplace Class Action Litigation Report is also available as an eBook. The downloaded eBook is accessible via freely available eBook reader apps like iBook, Kobo, Aldiko, etc. The eBook provides a rich and immersive reading experience to the users.

Some of the notable features include:

1. The eBook is completely searchable.

2. Users can increase or decrease the font sizes.

3. Active links are set for the table of contents to their respective sections.

4. Bookmarking is offered for notable pages.

5. Readers can drag to navigate through various pages.

A Note On Class Action And Collective Action Terms And Laws

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References are made to Rule 23 of the Federal Rules of Civil Procedure and 29 U.S.C. § 216(b) throughout this Report. These are the two main statutory sources for class action and collective action decisional law. Both are procedural devices used in federal courts for determining the rights and remedies of litigants whose cases involve common questions of law and fact. The following summary provides a brief overview of Rule 23 and § 216(b).

Class Action Terms

The Report uses the term class action to mean any civil case in which parties indicated their intent to sue on behalf of themselves as well as others not specifically named in the suit at some point prior to the final resolution of the matter. This definition includes a case in which a class was formally approved by a judge (a certified class action), as well as a putative class action, in which a judge denied a motion for certification, in which a motion for certification had been made but a decision was still pending at the time of final resolution, or in which no formal motion had been made but other indications were present suggesting that class treatment was a distinct possibility (such as a statement in a complaint that the plaintiffs intended to bring the action on behalf of others similarly-situated).

Although certified class actions may receive considerable attention if they are reported publicly, defendants also must confront putative class actions that contain the potential for class treatment as a result of filing a motion for certification or because of allegations in the original complaint that assert that the named plaintiffs seek to represent others similarly-situated. Even if such cases are never actually certified, the possibility of the litigation expanding into a formal class action raises the stakes significantly, perhaps requiring a more aggressive (and costlier) defense or resulting in a settlement on an individual basis at a premium.

Rule 23

Rule 23 governs class actions in federal courts, and typically involves lawsuits that affect potential class members in different states or that have a nexus with federal law. Rule 23 requires a party seeking class certification to satisfy the four requirements of section (a) of the rule and at least one of three conditions of section (b) of the rule. Under U.S. Supreme Court precedent, a district court must undertake a “rigorous analysis of Rule 23 prerequisites” before certifying a class. General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982). More often than not, plaintiffs will support their motion for class certification with deposition testimony, declarations of putative class members, and expert opinions in the form of affidavits of expert witnesses. Courts often observe that the appropriate analysis in reviewing this evidence is not equivalent to an examination of the merits or a battle between the parties’ experts. Rather, the salient issue is whether plaintiffs’ legal theories and factual materials satisfy the Rule 23 requirements.

The Rule 23(a) requirements include:

• Numerosity – The individuals who would comprise the class must be so numerous that joinder of them all into the lawsuit would be impracticable.

• Commonality – There must be questions of law and fact common to the proposed class.

• Typicality – The claims or defenses of the representative parties must be typical of the claims and defenses of putative class members.

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• Adequacy of Representation – The representative plaintiffs and their counsel must be capable of fairly and adequately protecting the interests of the class.

The standards for analyzing the commonality requirement of Rule 23(a)(2) were tightened in 2011 with the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, et al., 131 S. Ct. 2541 (2011). As a result, a “common” issue is one that is “capable of class-wide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each of the claims in one stroke.” Id. at 2551.

Once a plaintiff establishes the four requirements of Rule 23(a), he or she must satisfy one of the three requirements of Rule 23(b). In practice, a plaintiff typically establishes the propriety of class certification under either Rule 23(b)(2) or Rule 23(b)(3) in an employment-related case.

Because application of each rule depends on the nature of the injuries alleged and the relief sought, and imposes different certification standards on the class, the differences between Rule 23(b)(2) and (b)(3) are critical in employment-related class action litigation. In the words of the rule, a class may be certified under Rule 23(b)(2) if the party opposing the class “has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” In other words, plaintiffs seeking to certify class actions under Rule 23(b)(2) are restricted to those cases where the primary relief sought is injunctive or declaratory in nature. Rule 23(b)(2) does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages. Rule 23(b)(2) provides for a binding litigation order as to all class members without guarantees of personal notice and the opportunity to opt-out of the suit.

Rule 23(b)(3) is designed for circumstances in which class action treatment is not as clearly called for as in Rule 23(b)(1) and Rule 23(b)(2) situations, when a class action may nevertheless be convenient and desirable. A class may be certified under Rule 23(b)(3) if the court finds that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Pertinent considerations include the interest of the members of the class in individually controlling the prosecution of separate actions; the extent and nature of any litigation concerning the controversy already commenced by members of the class; the desirability of concentrating the litigation of the claims in one particular forum; and the difficulties likely to be encountered in the management of a class action.

To qualify for certification under Rule 23(b)(3), therefore, a class must meet not only the requirements of Rule 23(a), but also two additional requirements: “(1) common questions must predominate over any questions affecting only individual members; and (2) class resolution must be superior to other available methods for the fair and efficient adjudication of the controversy.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615 (1997). While the common question requirement of Rule 23(a)(2) and the predominance requirement of Rule 23(b)(3) overlap, the predominance requirement is more stringent than the common question requirement. Thus, even though a case may present common questions of law or fact, those questions may not always predominate and class certification would be inappropriate.

Rule 23(b)(3) applies to cases where the primary relief sought is money damages. The Supreme Court has determined – in Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) – that unlike in Rule 23(b)(2) class actions, each class member in a Rule 23(b)(3) class action for money damages is entitled as a matter of due process to personal notice and an opportunity to opt-out of the class action. Accordingly, Rule 23(c)(2) guarantees those rights for each member of a

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class certified under Rule 23(b)(3). There are no comparable procedural guarantees for class members under Rule 23(b)(2).

Finally, two recent decisions of the U.S. Supreme Court have established a gloss on the Rule 23 requirements that play out in class certification proceedings in a significant manner, including: (i) Wal-Mart Stores, Inc. v. Dukes, et al., 131 S. Ct. 2541 (2011), as referenced above, which tightened commonality standards under Rule 23(a)(2); and (ii) Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), which interpreted Rule 23(b)(3) – that requires “questions of law or fact common to class members predominate over any questions affecting only individual members” – to mandate that plaintiffs’ proposed damages model show damages on a class-wide basis. In Wal-Mart and Comcast, the Supreme Court reaffirmed that lower federal courts must undertake a "rigorous analysis" of whether a putative class satisfies the predominance criterion set forth in Rule 23(b)(3), even if that analysis overlaps with the merits of the underlying claims.

29 U.S.C. § 216(b)

This statute governs multi-plaintiff lawsuits under the ADEA and the FLSA. Generally, such lawsuits are known as collective actions (as opposed to class actions).

Under 29 U.S.C. § 216(b), courts generally recognize that plaintiffs and other “non-party” individuals may not proceed collectively until they establish that that they should be permitted to do so as a class. Under § 216(b), courts have held that “similarly-situated” individuals may proceed collectively as a class. The federal circuits have not agreed on the standard according to which such a class should be certified. Two competing standards for certification are recognized.

The first approach adopts the view that the “similarly-situated” inquiry is coextensive with the procedure used in class actions brought pursuant to Rule 23. Using this methodology, the court analyzes the putative class for factors including numerosity, commonality, typicality, and adequacy of representation. This typically occurs after some discovery has taken place. This approach is unusual and is not favored.

The second approach is a two-tiered approach involving a first stage conditioned certification process and a second stage potential decertification process. It is more commonly used and is the prevailing test in federal courts. In practice, it tends to be a “plaintiff-friendly” standard.

In the context of the first stage of conditional certification, plaintiffs typically move for conditional certification and permission to send notices to prospective class members. This generally occurs at an early stage of the case, and often before discovery even commences. Courts have held that a plaintiff’s burden at this stage is minimal. A ruling at this stage of the litigation often is based upon allegations in the complaint and any affidavits submitted in favor of or in objection to conditional certification.

Courts have not clearly defined the qualitative or quantitative standards of evidence that should be applied at this stage. Courts are often reluctant to grant or deny certification on the merits of a plaintiff’s case. This frustrates defendants with clearly meritorious arguments in defense of the litigation, such as those based on compelling proof that would establish the exempt status of the plaintiffs and other employees alleged to be similarly-situated.

Instead, courts appear to find the most convincing proof that certification is improper based on evidence that putative class members perform different jobs in different locations or facilities,

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under different supervisors, and potentially pursuant to differing policies and practices. Courts also have held that certification is inappropriate when individualized inquiries into applicable defenses are required, such as when the employer asserts that the relevant employees are exempt.

Where conditional certification is granted, a defendant has the opportunity to request that the class be decertified after discovery is wholly or partially completed in the subsequent, second stage of decertification. Courts engage in a more rigorous scrutiny of the similarities and differences that exist amongst members of the class at the decertification stage. The scrutiny is based upon a more developed, if not entirely complete, record of evidence. Upon an employer’s motion for decertification, a court assesses the issue of similarity more critically and may revisit questions concerning the locations where employees work, the employees’ supervisors, their employment histories, the policies and practices according to which they perform work and are paid, and the distinct defenses that may require individualized analyses.

Opt-In/Opt-Out Procedures

Certification procedures are different under Rule 23 and 29 U.S.C. § 216(b). Under Rule 23(b)(2), a court’s order binds the class; under Rule 23(b)(3), however, a class member must opt-out of the class action (after receiving a class action notice). If he or she does not do so, they are bound by the judgment. Conversely, under § 216(b), a class member must opt-in to the lawsuit before he or she will be bound. While at or near 100% of class members are effectively bound by a Rule 23 order, opt-in rates in most § 216(b) collective actions typically range from 5% to 40%.

TABLE OF CONTENTS

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I. OVERVIEW OF THE YEAR IN WORKPLACE CLASS ACTION LITIGATION ................ 1

A. Executive Summary ............................................................................................... 1

B. Key Trends Of 2015 ............................................................................................... 1

C. Significant Trends In Workplace Class Action Litigation In 2015 ............................ 2

(i) The Impact Of U.S. Supreme Court Rulings ......................................... 2

(ii) Higher Class Action Settlement Numbers In 2015 ................................ 5

(iii) Class Certification Certification Trends In 2015 .................................... 9

(iv) Complex Employment-Related Litigation Trends In 2015 ....................14

(v) Governmental Enforcement Litigation Trends In 2015 .........................16

D. Trends For The Future Of Workplace Class Actions .............................................19

E. Conclusion ............................................................................................................23

II. SIGNIFICANT CLASS ACTION SETTLEMENTS IN 2015 .............................................25

A. Top Ten Private Plaintiff-Initiated Monetary Settlements .......................................25

B. Top Ten Government-Initiated Monetary Settlements ...........................................31

C. Noteworthy Injunctive Relief Provisions In Class Action Settlements ....................33

III. SIGNIFICANT FEDERAL EMPLOYMENT DISCRIMINATION CLASS ACTION AND EEOC PATTERN OR PRACTICE RULINGS ........................................................37

A. Cases Certifying Or Refusing To Certify Employment Discrimination Class Actions Under Title VII Of The Civil Rights Act Of 1964 ..............................37

B. EEOC Pattern Or Practice Cases .........................................................................43

IV. SIGNIFICANT COLLECTIVE ACTION RULINGS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT................................................................. 127

A. Cases Certifying Or Refusing To Certify ADEA Collective Action Claims ................................................................................................................ 127

B. Other Federal Rulings Affecting The Defense Of ADEA Collective Actions ................................................................................................................ 129

(i) Equal Pay Act Litigation ..................................................................... 129

(ii) Tolling In ADEA Collective Action Litigation ....................................... 132

(iii) Discovery In ADEA Collective Action Litigation .................................. 134

(iv) Experts In ADEA Collective Action Litigation ..................................... 136

(v) Notice Issues In ADEA/EPA Collective Action Litigation .................... 137

(vi) OWBPA Issues In ADEA Collective Action Litigation ......................... 137

(vii) Disparate Impact Issues In ADEA Collective Actions ......................... 138

V. SIGNIFICANT COLLECTIVE ACTION RULINGS UNDER THE FAIR LABOR STANDARDS ACT ...................................................................................................... 141

A. Cases Certifying Or Refusing To Certify FLSA Collective Action Claims ............. 142

B. Other Federal Rulings Affecting The Defense Of FLSA Collective Actions ................................................................................................................ 243

(i) Procedural And Notice Issues In FLSA Collective Actions ................. 243

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(ii) Mootness In FLSA Collective Actions ................................................ 251

(iii) Individual Executive Liability In FLSA Collective Actions.................... 253

(iv) Awards Of Attorneys’ Fees In FLSA Collective Actions ..................... 254

(v) Application Of Twombly Pleading Standards In FLSA Collective Actions .............................................................................................. 256

(vi) FLSA Collective Actions For Donning And Doffing............................. 259

(vii) Exemption Issues In FLSA Collective Actions .................................... 260

(viii) Discovery In FLSA Collective Actions ................................................ 268

(ix) Public Employee FLSA Collective Action Litigation ............................ 277

(x) Preemption And Immunity Issues In FLSA Collective Actions ............ 282

(xi) Independent Contractor Issues In Wage & Hour Class Actions ......... 286

(xii) Communications With Class Members In FLSA Collective Actions .............................................................................................. 291

(xiii) Venue Issues In FLSA Collective Actions .......................................... 293

(xiv) Pay Policies And Bonuses In FLSA Collective Actions ...................... 294

(xv) Arbitration Of Wage & Hour Class Claims ......................................... 297

(xvi) Settlement Approval Issues In Wage & Hour Class Actions And Collective Actions .............................................................................. 310

(xvii) DOL Wage & Hour Enforcement Actions ........................................... 323

(xviii) Application Of Statute Of Limitations In FLSA Collective Actions ....... 327

(xix) Concurrent State Law Claims In Wage & Hour Class Actions ............ 328

(xx) Joint Employer, Employee Status, And Employer Status Issues In FLSA Collective Actions ................................................................ 336

(xxi) Litigation Of Tip Pooling And Tip Credit Claims Under The FLSA ...... 341

(xxii) Sanctions In Wage & Hour Class Actions .......................................... 344

(xxiii) Issues With Opt-In Rights In Wage & Hour Class Actions .................. 346

(xxiv) Trial Issues In FLSA Collective Actions ............................................. 350

(xxv) Issues With Interns, Volunteers, And Students Under The FLSA ....... 351

(xxvi) Tolling Issues In Wage & Hour Class Actions .................................... 354

(xxvii) Interlocutory Appeals In Wage & Hour Class Actions ........................ 357

(xxviii) Amendments In FLSA Collective Actions ........................................... 358

(xxix) Foreign Worker Issues In Wage & Hour Class Actions ...................... 359

(xxx) Travel Time Issues In Wage & Hour Class Actions ............................ 361

(xxxi) Retaliation Issues In Wage & Hour Class Actions .............................. 364

(xxxii) The First To File Doctrine In FLSA Collective Actions ........................ 365

(xxxiii) The Motor Carrier Act Exemption In FLSA Collective Actions ............ 366

(xxxiv) Davis-Bacon Act Issues In Wage & Hour Class Action Litigation ....... 368

(xxxv) Stays In Wage & Hour Class Actions ................................................. 369

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(xxxvi) Settlement Bar And Estoppel Issues In Wage & Hour Class Actions .............................................................................................. 369

(xxxvii) Intervention Issues In Wage & Hour Class Actions ............................ 373

(xxxviii) Portal-To-Portal Act Issues In FLSA Collective Actions ..................... 373

(xxxix) Liquidated Damages In FLSA Collective Actions ............................... 373

VI. SIGNIFICANT CLASS ACTION RULINGS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974 .................................................... 375

A. Cases Certifying Or Refusing To Certify ERISA Class Actions ........................... 375

B. Other Federal Rulings Affecting The Defense Of ERISA Class Actions .............. 380

(i) Breach Of Fiduciary Duty Issues In ERISA Class Actions .................. 380

(ii) ERISA Class Action Litigation Over Retiree/Employee Benefits ........ 383

(iii) Attorneys’ Fees And Costs In ERISA Class Actions .......................... 388

(iv) Settlement Approval Issues In ERISA Class Actions ......................... 390

(v) Release Issues In ERISA Class Actions ............................................ 392

(vi) Standing Issues In ERISA Class Actions ........................................... 393

(vii) Cash Balance Plan Issues In ERISA Class Actions ........................... 394

(viii) Statute Of Limitations Issues In ERISA Class Actions ....................... 395

(ix) ERISA Stock Drop Class Actions ....................................................... 398

(x) Equitable Defenses In ERISA Class Actions...................................... 398

(xi) Arbitration Issues In ERISA Class Actions ......................................... 399

(xii) Vesting Issues In ERISA Class Actions ............................................. 401

(xiii) Preemption Issues In ERISA Class Actions ....................................... 401

(xiv) Damages Issues In ERISA Class Actions .......................................... 402

(xv) DOL And PBGC ERISA Enforcement Litigation ................................. 403

(xvi) Standing Issues In ERISA Class Actions ........................................... 406

(xvii) Intervention Issues In ERISA Class Actions....................................... 406

VII. SIGNIFICANT STATE LAW CLASS ACTION RULINGS ............................................. 407

A. Employment Discrimination Rulings .................................................................... 408

B. Wage & Hour Rulings ......................................................................................... 410

C. Rulings In Breach Of Employment Contract/Miscellaneous Workplace Claims ................................................................................................................ 447

D. Other State Law Rulings Affecting The Defense Of Workplace Class Action Litigation .................................................................................................. 459

VIII. RULINGS ON THE CLASS ACTION FAIRNESS ACT ................................................ 517

IX. OTHER FEDERAL RULINGS AFFECTING THE DEFENSE OF WORKPLACE CLASS ACTION LITIGATION ..................................................................................... 541

(i) Class Certification Procedural Issues And Proof Requirements ......... 541

(ii) Preemptive Motions To Strike Or Dismiss Class Allegations ............. 554

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(iii) The Numerosity Requirement For Class Certification ........................ 557

(iv) The Commonality Requirement For Class Certification ..................... 558

(v) The Typicality Requirement For Class Certification ........................... 559

(vi) The Adequacy Of Representation Requirement For Class Certification ....................................................................................... 560

(vii) The Predominance Requirement For Class Certification ................... 563

(viii) The Superiority Requirement For Class Certification ......................... 567

(ix) Workplace Class Action Arbitration Issues......................................... 570

(x) Non-Workplace Class Action Arbitration Issues ................................. 578

(xi) Litigation Over Class Action Settlement Agreements And Consent Decrees ............................................................................... 584

(xii) Ascertainability Under Rule 23........................................................... 585

(xiii) Class Actions Involving Unions .......................................................... 592

(xiv) Attorneys’ Fee Awards In Class Actions ............................................ 598

(xv) Intervention Rights In Class Actions .................................................. 609

(xvi) Collateral Estoppel, Res Judicata, And Settlement Bar Concepts Under Rule 23 ................................................................................... 611

(xvii) Notice Issues In Class Actions........................................................... 613

(xviii) Multi-Party Litigation Over Modification Of Employee/Retirement Benefits ............................................................................................. 614

(xix) Civil Rights Class Actions .................................................................. 621

(xx) Class Action Discovery Issues ........................................................... 625

(xxi) Class-Wide Proof And Class-Wide Damages In Class Actions .......... 637

(xxii) Multi-Party Litigation Under The WARN Act ....................................... 640

(xxiii) Class Definition Issues ...................................................................... 643

(xxiv) Settlement Approval Issues In Class Actions ..................................... 646

(xxv) Mootness Issues In Class Action Litigation ........................................ 657

(xxvi) Experts In Class Action Litigation ...................................................... 661

(xxvii) Sanctions In Class Action Litigation ................................................... 664

(xxviii) Issues With The Judicial Panel On Multi-District Litigation In Class Actions ..................................................................................... 673

(xxix) Standing Issues In Class Actions ....................................................... 677

(xxx) Application Of Tolling Principles In Class Actions .............................. 683

(xxxi) Exhaustion Principles In Class Actions .............................................. 686

(xxxii) Appointment And Selection Of Counsel In Class Actions................... 686

(xxxiii) Workplace RICO Class Actions ......................................................... 688

(xxxiv) Public Employee Class Actions ......................................................... 690

(xxxv) Injunctions In Class Actions ............................................................... 691

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(xxxvi) FACTA And FDCPA Class Actions .................................................... 692

(xxxvii) TCPA Class Actions .......................................................................... 699

(xxxviii) The Cy pres Doctrine In Class Actions .............................................. 703

(xxxix) Impact Of Unethical Conduct In Class Actions ................................... 703

(xl) Objectors In Class Actions ................................................................. 705

(xli) Privacy Class Actions ........................................................................ 706

(xlii) Choice-Of-Law Issues In Class Actions ............................................. 712

(xliii) Insurance-Related Class Actions ....................................................... 714

(xliv) Disparate Impact Issues In Class Actions .......................................... 715

(xlv) ADA Class Actions ............................................................................ 717

(xlvi) Government Enforcement Litigation .................................................. 720

(xlvii) Alien Tort Statute And Trafficking Victims Class Actions .................... 723

(xlviii) Workplace Antitrust Class Actions ..................................................... 725

(xlix) Stays In Class Action Litigation.......................................................... 727

(l) FCRA Class Actions .......................................................................... 732

(li) Appeals In Class Action Litigation ...................................................... 741

(lii) Certification Of Defendant Classes .................................................... 744

(liii) Venue Issues In Class Actions .......................................................... 745

(liv) Bifurcation Issues In Class Actions .................................................... 749

(lv) Joinder And Severance Issues In Class Actions ................................ 749

(lvi) Comity Principles In Class Actions .................................................... 750

(lvii) Breach Of Contract Class Actions ..................................................... 751

(lviii) Amendments In Class Action Litigation .............................................. 753

(lix) Foreign Worker Class Actions ........................................................... 754

(lx) Juries In Class Actions ...................................................................... 756

(lxi) Disqualification Of Counsel In Class Actions ..................................... 756

(lxii) Statute Of Limitations Issues In Class Actions ................................... 757

(lxiii) Medical Monitoring Class Actions ...................................................... 760

(lxiv) Pseudonyms And Confidential Witnesses In Class Action Litigation ............................................................................................ 761

(lxv) Consumer Fraud Class Actions ......................................................... 762

(lxvi) Recusal Issues In Class Actions ........................................................ 766

(lxvii) Settlement Administration Issues In Class Actions ............................ 767

(lxviii) Removal Issues In Class Actions ....................................................... 771

(lxix) Employee Testing Issues In Class Actions ........................................ 772

(lxx) Consolidation Issues In Class Actions ............................................... 773

(lxxi) Settlement Enforcement Issues In Class Action Litigation ................. 774

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(lxxii) Case Management Issues Of Class Actions ...................................... 775

(lxxiii) Trial Issues In Class Action Litigation ................................................ 776

(lxxiv) Immigration Class Actions ................................................................. 777

(lxxv) Class Actions Under 42 U.S.C. § 1981 .............................................. 779

(lxxvi) Costs In Class Actions ....................................................................... 782

(lxxvii) Media Privilege Issues In Class Actions ............................................ 783

(lxxviii) Issue Certification Under Rule 23(c) .................................................. 784

(lxxix) Special Masters In Class Actions ....................................................... 785

(lxxx) Incentive Awards In Class Actions ..................................................... 785

APPENDIX I – TABLE OF 2015 WORKPLACE CLASS ACTION AND COLLECTIVE ACTION LITIGATION RULINGS ..................................................................... 789

APPENDIX II – LARGEST EMPLOYMENT DISCRIMINATION CLASS ACTION SETTLEMENTS............................................................................................. 849

I. Overview Of The Year In Workplace Class Action Litigation

Annual Workplace Class Action Litigation Report: 2016 Edition Seyfarth Shaw LLP 1

A. Executive Summary

Workplace class action litigation often poses unique “bet-the-company” risks for employers. An adverse judgment in a class action has the potential to bankrupt a business. Likewise, the on-going defense of a class action can drain corporate resources long before the case reaches a decision point. Companies that do business in multiple states are also susceptible to “copy-cat” class actions, whereby plaintiffs’ lawyers create a domino effect of litigation filings that challenge corporate policies and practices. Hence, workplace class actions can adversely impact a corporation’s market share, jeopardize or end the careers of senior management, and cost millions of dollars in defense fees. For these reasons, workplace class action litigation risks are at the top of the list of problems that keep business leaders up at night.

Skilled plaintiffs’ class action lawyers and governmental enforcement litigators are not making that challenge any easier. They are continuing to develop new theories and approaches to prosecuting complex employment litigation. In turn, the events of the past year in the workplace class action world demonstrate that the array of litigation issues facing businesses are continuing to accelerate while also undergoing significant change. Governmental enforcement litigation pursued by the U.S. Equal Employment Commission (“EEOC”) and the U.S. Department of Labor (“DOL”) also manifests an aggressive “push-the-envelope” agenda of two activist agencies, with regulatory oversight of workplace issues continuing as a high priority. The combination of these factors are challenging businesses to integrate their litigation and risk mitigation strategies to navigate these exposures. These challenges are especially acute for businesses in the context of complex workplace litigation.

B. Key Trends Of 2015

An overview of workplace class action litigation developments in 2015 reveals five key trends.

First, class 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. The past year continued that trend, with several key decisions on complex employment litigation issues, and more cases accepted for review that are posed for rulings in 2016. While the Supreme Court led by Chief Justice John Roberts is often thought to be pro-business, the array of its key rulings impacting class action workplace issues is anything but one-dimensional. Some decisions may be viewed as hostile to the expansive use of Rule 23, while others are hospitable and strengthen the availability of class actions. Further, the Supreme Court has declined several opportunities to impose more restraints on class actions, and by often deciding cases on narrow grounds, it has left many gaps to be filled in by – and thereby fueled disagreements arising amongst – lower federal courts. Suffice it to say, the range of rulings form a complex tapestry that precludes an overarching generalization that the Supreme Court is pro-business or pro-worker on class actions.

Second, the monetary value of employment-related class action settlements reached an all-time high in 2015. The plaintiffs’ employment class action bar and governmental enforcement litigators successfully translated their case filings into larger class-wide settlements at unprecedented levels. The top ten settlements in various employment-related categories totaled $2.48 billion over the past year as compared to $1.87 billion in 2014. As success in the class action litigation context often serves to encourage pursuit of more class actions by “copy-cat” litigants, 2016 is apt to see the filing of more class actions than in previous years.

Third, federal and state courts issued more favorable class certification rulings for the plaintiffs’ bar in 2015 than in past years. In addition to converting their class certification rulings into class action settlements with higher values and pay-outs, plaintiffs’ lawyers continued to craft refined and more successful class

Annual Workplace Class Action Litigation Report: 2016 Edition 2 Seyfarth Shaw LLP

certification theories to counter the more stringent Rule 23 certification requirements established in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), and Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). In the areas of employment discrimination, wage & hour, and ERISA class actions, the plaintiffs’ bar scored exceedingly well in securing class certification rulings in 2015. In sum, class actions continue to be certified in significant numbers and certain “magnet” jurisdictions continue to issue decisions that encourage – or, in effect, force – the resolution of large numbers of claims through class action mechanisms.

Fourth, complex employment-related litigation filings are up from past years, but by far and away, wage & hour class actions and collective actions are the leading type of “high stakes” lawsuits being pursued by the plaintiffs’ bar. Case filing statistics for 2015 reflected that wage & hour litigation outpaced all other categories of lawsuits, and increased yet again over the past year, with no end in sight of the crest of the tidal wave of case filings. Additional factors set to coalesce in 2016 – including new FLSA regulations, the impact of digital technology, and increased scrutiny of independent contractor and joint employer relationships – are apt to drive these exposures even higher for Corporate America.

Fifth, government enforcement lawsuits brought by the DOL and EEOC continued the aggressive litigation programs of both agencies. Settlement numbers for government enforcement litigation in 2015 increased substantially over 2014, as did the litigation dockets of the DOL and the EEOC. This trend is critical to employers, as both agencies have a focus on “big impact” lawsuits against companies and “lead by example” in terms of areas that the private plaintiffs’ bar aims to pursue.

C. Significant Trends In Workplace Class Action Litigation In 2015

(i) The Impact Of U.S. Supreme Court Rulings

Over the past decade, the U.S. Supreme Court – led by Chief Justice John Roberts – increasingly has shaped the contours of complex litigation exposures through its rulings on class action and governmental enforcement litigation issues. Many of these decisions have elucidated the requirements for pursuing employment-related class actions. The 2011 decision in Wal-Mart Stores, Inc. v. Dukes and the 2013 decision in Comcast Corp. v. Behrend are the two most significant examples. Both of those rulings are at the core of class certification issues under Rule 23. To that end, federal and state courts cited Wal-Mart in 521 rulings in 2015; they cited Comcast 244 times in 2015.

In terms of direct decisions by the Supreme Court impacting workplace class actions, this past year was no exception. In 2015, the Supreme Court decided six cases – four employment-related cases and two class action cases – that will influence complex employment-related litigation.

The rulings included two EEOC cases, two ERISA cases, and two cases on civil procedure issues.

– DirecTV, Inc. v. Imburgia, et al., 2015 U.S. LEXIS 7999 (U.S. Dec. 14, 2015) – In DirecTV, the Supreme Court held that because the California Court of Appeal’s interpretation of an agreement that included a binding arbitration provision with a class arbitration waiver – which specified that the entire arbitration provision was unenforceable if the “law of your state” made class arbitration waivers unenforceable, but also declared that the arbitration clause was governed by the Federal Arbitration Act – was preempted by the Federal Arbitration Act, such an arbitration agreement is enforceable. As a result, the decision continues the trend of pro-arbitration Supreme Court precedents that arm corporations with the ability to use arbitration agreements to manage class actions risks.

– EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015) – In Abercrombie & Fitch, the Supreme Court held that to prevail in a disparate treatment claim of religious


discrimination under Title VII of the Civil Rights Act of 1964, the EEOC need only establish that an applicant’s need for an accommodation was a motivating factor in the employer’s decision, not that the employer actually knew of the applicant’s need. The decision largely favored the EEOC’s position, and makes it easier for the Commission and plaintiffs to prevail in religious discrimination lawsuits.

– EEOC v. Mach Mining, LLC, 135 S. Ct. 1645 (2015) – In Mach Mining, the Supreme Court held that a district court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit; at the same time, because the EEOC has extensive discretion to determine what kind and amount of communication with an employer is appropriate in any given case, the scope of that review is narrow. The decision rejected the EEOC’s position that its pre-lawsuit conciliation conduct was beyond judicial review.

– Gelboim, et al. v. Bank of America, 135 S. Ct. 897 (2015) – In Gelboim, the Supreme Court held that when a district court dismisses the only claim in a case that has been consolidated with other actions for pre-trial proceedings in multidistrict litigation (“MDL”), the district court’s order is a final and appealable order, even if claims remained in other actions included in the MDL. The impact of the decision is to allow more immediate appeals in high stakes, multi-district class actions.

– M & G Plymers USA, LLC v. Tackett, et al., 135 S. Ct. 926 (2015) – In Tackett, the Supreme Court held that to determine whether retiree health-care benefits survive the expiration of a collective bargaining agreement, federal courts should apply ordinary contract principles. Those principles do not include the longstanding principle from International Union, United Auto, Aerospace, & Agricultural Implement Workers of Am. v. Yard-Man, Inc., 716 F. 2d 1476 (6th Cir. 1983), which created an inference that, in the absence of evidence to the contrary, collective bargaining agreements intend to vest retirees with lifetime benefits. In rejecting the Sixth Circuit's application of its own three-decade-old decision in Yard-Man, in finding that the Yard-Man presumption and its progeny were out of step with contract law, the Supreme Court’s decision placed its thumb on the legal scale in favor of finding vested retiree benefits in high-stakes ERISA litigation.

– Tibble, et al. v. Edison International, 135 S. Ct. 1823 (2015) – In Tibble, the Supreme Court held that because a fiduciary normally has a continuing duty to monitor investments and remove imprudent ones, a plaintiff may allege that a fiduciary breached a duty of prudence by failing to properly monitor investments and remove imprudent ones. The Supreme Court determined that such a claim is timely under the ERISA as long it is filed within six years of the alleged breach of continuing duty. The Supreme Court’s decision in Tibble – that an ERISA plan fiduciary has a continuing duty to monitor investments – has long been recognized to be an essential tenet of trust law. The more significant impact of Tibble may involve what the Supreme Court did not say and what it did not decide, but instead left open for the lower courts to consider, i.e., at what point, and under what circumstances, will an ERISA plan fiduciary be considered to have violated that “continuing duty”? Obviously recognizing that the “devil is in the details,” by declining to provide guidance or guidelines, the Supreme Court in Tibble simply left it for the lower courts to examine the details, and identify the devils in those details. This has the potential to be a time-consuming and expensive one, where each case will turn on its particular facts, and it will take time before reliable standards emerge.


Equally important for the coming year, the Supreme Court accepted four additional cases for review in 2015 – that are likely to be decided in 2016 – that also will impact and shape class action litigation and government enforcement lawsuits faced by employers. Those cases include two employment lawsuits and two class action cases. The Supreme Court undertook oral argument on three of the cases in 2015; the other will have oral arguments in 2016. The corporate defendants in each case have sought rulings seeking to limit the use of class actions or control government enforcement lawsuits.

– Spokeo v. Robins, No. 13-1339 – Widely considered the most important class action of the current Supreme Court term, the Spokeo case concerns whether people without an injury can still file class actions. The Supreme Court heard argument on the case in November of 2015 about whether a job applicant should be able to bring complaints against credit reporting firms under the Fair Credit Reporting Act (“FCRA”), where the plaintiff alleged that a people search engine violated the FCRA when it reported he was wealthy and had a graduate degree; in reality, he was struggling to find work. The defense is looking to overturn the Ninth Circuit’s revival of the suit. Among the issues in the case is whether an applicant without a pocket book injury has standing to prosecute a class action and whether a company can defend itself by pointing to FCRA-compliant processes it has in place, even if they did not fully prevent the publication of misinformation.

– Campbell-Ewald v. Gomez, No. 14-857 – The Campbell-Ewald case concerns whether a company can moot and defeat a class action by offering a settlement, and what happens to potential class actions when such deals are accepted. The Supreme Court heard argument on the case in October of 2015. If the Supreme Court were to find that the offer of a settlement makes a lawsuit moot and kills off potential class actions, it could allow companies to attempt to cut off such cases with quick-strike settlements. The Supreme Court also may decide whether, in order for the strategy to work, defendants have to make the offer before class certification, according to Gottlieb.

– Tyson Foods v. Bouaphakeo, Case No. 14-1146 – The Tyson Foods case involves review of an Eighth Circuit ruling where workers sued for unpaid work and overtime for time spent putting on and taking off hard hats, work boots, hair nets, aprons, gloves and earplugs; a jury awarded the workers $2.89 million, which turned into $5.8 million with liquidated damages, which the Eighth Circuit upheld. The Supreme Court heard argument in November of 2015. The case presents an opportunity for the Supreme Court to allow or forbid class actions that rely on a composite or “average plaintiff” or “average class member” for damages purposes, also sometimes dubbed as “trial by formula.” At issue is whether the Supreme Court will determine that differences between class members essentially prohibit class treatment or that averaging and aggregation are permissible. Further, the Supreme Court may pronounce any new standards for the use of statistics for dealing with damages in class actions, or limit the use of statistical proof to demonstrate Rule 23(b)(3) factors or proving class-wide damages.

– CRST Van Expedited Inc. v. EEOC, Case No. 14-1375 – This case concerns the largest fee sanction award – approximately $4.7 million – ever issued against the Commission. It arose from a systemic sexual harassment lawsuit that the agency lost for failing to meet pre-suit obligations relative to the claims of 67 claimants over whom the EEOC sued but failed to investigate before filing suit. The dispute over legal fees arose when the employer subsequently secured a fee award for its expenditures in fighting the claims. The Eighth Circuit subsequently upended that award on the basis that the district court improperly ruled that it had to determine on an individual basis whether each of the


67 claims in question were frivolous or groundless. The Supreme Court accepted the case for review in December 2015. The Supreme Court is likely to determine the obligations of the Commission in prosecuting systemic lawsuits and the grounds on which it may be sanctioned for inappropriate litigation.

The decisions in Spokeo, Campbell-Ewald, Tyson Foods, and CRST Van Expedited are expected to be issued by June of 2016, and are sure to shape and influence class action litigation in a profound manner.

(ii) Higher Class Action Settlement Numbers In 2015

As measured by the top ten largest case resolutions in various workplace class action categories, settlement numbers increased to record high levels in 2015. This reversed a trend that began with the U.S. Supreme Court’s decision in Wal-Mart in 2011. By tightening Rule 23 standards and raising the bar for class certification, Wal-Mart made it more difficult for plaintiffs to convert their class action filings into substantial settlements.

The statistics for 2015 showed a reversal of this trend. This manifests a maturing of case architecture considerations, whereby plaintiffs’ lawyers have “re-booted” their strategic approaches to take account of Wal-Mart, and crafted and refined class certification theories with better chances of success. Considering all types of workplace class actions, settlement numbers in 2015 were at an all-time high of $2.48 billion. This represented a significant increase over 2014 levels, when the aggregate settlement numbers totaled $1.87 billion.

In terms of the upward trend, breakouts by type of workplace class action are instructive. There was an upward trend in each area except ERISA class actions, which decreased slightly but still accounted for a massive aggregate total. This is shown by the following chart:


By type of case, settlements in private plaintiff statutory workplace class actions experienced the most significant increase. They increased to $713.85 million in 2015 from $74.03 million in 2014. The following chart shows this nearly ten-fold increase:


Most telling, however, the reversal of the “Wal-Mart effect” is shown by the pattern for employment discrimination class action settlements in 2015. This trend is illustrated in the following chart:

Thus, in 2015, the value of the top ten largest employment discrimination class action settlements was the highest since 2010,1 and reversed the downward trend that started in 2011 and depressed settlement amounts over a 3-year period.

The trend is even more pronounced with wage & hour class action settlements. In 2015, the value of the top ten wage & hour settlements increased after two years of declining numbers; in fact, the value of those settlements more than doubled.2 Wal-Mart has had far less of an impact in this substantive legal area, as FLSA settlements are not explicitly tied to the concepts on class certification addressed in Wal-Mart (and instead, are based on the standards under 29 U.S.C.§ 216(b)). This trend is illustrated by the following chart:

1 An analysis of settlement activity is set forth in Chapter II of this Report. The total of $295.57 million for the top ten largest employment discrimination class action settlements in 2015 is the second highest total since 2006; the figures for each year were as follows: 2014 – $227.93 million; 2013 – $234.1 million; 2012 – $48.6 million; 2011 – $123.2 million; 2010 – $346.4 million; 2009 – $86.2 million; 2008 – $118.36 million; 2007 – $282.1 million; and 2006 – $91 million. With the issuance of the Wal-Mart decision in June of 2011, settlements were decidedly lower in 2012, and relatively depressed in 2013 and 2014. A chart of the all-time largest employment discrimination class action settlements is set out at Appendix II of the Report.

2 The total for the top ten wage & hour class action settlements in 2015 was $463.6 million, compared to $215.3 million in 2014 and $248.45 million in 2013.


Relatedly, government enforcement litigation also followed this trend, and settlements in 2015 increased over 2014, when settlements hit their lowest point in the last eight years.3 This trend is illustrated by the following chart:

3 The total for the top ten government enforcement litigation settlements was $82.8 million, compared to $39.45 million in 2014, $171.6 million in 2013 and $262.78 million in 2012.


In contrast, ERISA class action settlements topped $926.5 million in 2015. While this aggregate number was nearly ten times greater than in 2013,4 it represented a slight decrease from 2014 (when settlements were $1.31 billion). Nonetheless, ERISA class action settlements this past year were fueled by several mega-settlements. This trend is illustrated by the following chart:

(iii) Class Certification Certification Trends In 2015

Anecdotally, surveys of corporate counsel confirm that complex workplace litigation – and especially class action and multi-plaintiff lawsuits – remains one of the chief exposures driving corporate legal budget expenditures, as well as the type of legal dispute that causes the most concern for their companies. The prime concern in that array of risks is now indisputably wage & hour litigation exposures.

While plaintiffs continued to achieve initial conditional certification of wage & hour collective actions in 2015, employers also secured significant victories in defeating conditional certification motions and obtaining decertification of § 216(b) collective actions.5 It is expected that the vigorous pursuit of nationwide FLSA collective actions by the plaintiffs’ bar will continue in 2016, and that the pace of wage & hour filings will increase yet again over the next year.

An increase in FLSA filings likewise caused the issuance of more FLSA certification rulings than in any other substantive area of complex employment litigation. The analysis of these rulings – discussed in Chapter V of this Report – shows that more cases are brought against employers in more plaintiff-friendly

4 The total for the top ten ERISA class action settlements in 2015 was $926.5 million compared to $1.31 billion in 2014 and $155.6 million in 2013.

5 An analysis of FLSA collective actions in 2015 is set forth in Chapter V, and analysis of state law wage & hour class action rulings in 2015 is set forth in Chapter VII.


jurisdictions such as the judicial districts within the Second and Ninth Circuits. This trend is shown by the following map:

The map of FLSA certification rulings is telling. First, it substantiates that the district courts within the Ninth Circuit and the Second Circuit are the epicenters of wage & hour litigation. More cases were prosecuted and conditionally certified – 35 certification orders in the Ninth Circuit and 18 certification orders in the Second Circuit – in the district courts in those circuits than in any other areas of the country. The district courts in the Seventh, Fourth, and Fifth Circuits were not far behind, with 10, 9, and 9 certification orders respectively in those jurisdictions.

Second, as the burdens of proof reflect under 29 U.S.C. § 216(b), plaintiffs won the overwhelming majority of “first stage” conditional certification motions (115 of 153 rulings, or approximately 75%); in terms of “second stage” decertification motions, plaintiffs also prevailed in a majority of those cases (14 of 22 rulings, or approximately 64% of the time). These certification statistics are more favorable to the plaintiffs’ bar than 2014, when they won 70% of “first stage” conditional certification motions, and beat “second stage” decertification motions in 52% of the cases.


Third, it reflects that there has been an on-going migration of skilled plaintiffs’ class action lawyers into the wage & hour litigation space. Securing initial “first stage” conditional certification – and foisting settlement pressure on an employer – can be done quickly (almost right after the case is filed), with a minimal monetary investment in the case (e.g., no expert is needed unlike the situation when certification is sought in an employment discrimination class action), and without having to conduct significant discovery (per the case law that has developed under 29 U.S.C. § 216(b)). As a result, to the extent litigation of class actions by plaintiffs’ lawyers is viewed as an investment, prosecution of wage & hour lawsuits is a relatively low cost investment, without significant barriers to entry, and with the prospect of immediate returns as compared to other types of workplace class action litigation.

At the same time, the rulings in Wal-Mart and Comcast also fueled more critical thinking and crafting of case theories in employment discrimination and ERISA class action filings in 2015. The Supreme Court’s two Rule 23 decisions has had the effect of forcing the plaintiffs’ bar to “re-boot” the architecture of their class action theories.6 It is clear that the playbook on Rule 23 strategies is undergoing an overhaul. Filings of “smaller” employment discrimination class actions have increased due to a strategy whereby state or regional-type classes are asserted rather than nationwide mega-cases. In essence, the plaintiffs’ playbook is more akin to a strategy of “aim small, miss small.” In turn, employment-related class certification rulings outside of the wage & hour area were a mixed bag or tantamount to a “jump ball” in 2015, as 3 of 7 were granted (and 4 were denied). The following map illustrates this array of certification rulings:

6 An analysis of rulings in employment discrimination class actions in 2015 is set forth in Chapter III. An analysis of non-workplace class action rulings that impact employment-related cases is set forth in Chapter IX.


In terms of the ERISA class action litigation scene in 2015,7 the focus continued to rest on the U.S. Supreme Court as it shaped and refined the scope of potential liability and defenses in ERISA cases. The Wal-Mart decision also has changed the ERISA certification playing field by giving employers more grounds to oppose class certification. The decisions in 2015 show that class certification motions have the best chance of denial in the context of ERISA welfare plans, and ERISA defined contribution pension plans, where individualized notions of liability and damages are prevalent. Nonetheless, plaintiffs were more successful than defendants, winning 5 of 7 certification rulings. A map illustrating these trends is shown below:

So what conclusions overall can be drawn on class certification trends in 2015? In the areas of employment discrimination, wage & hour, and ERISA, the plaintiffs’ bar is converting their case filings into certification of classes at a high rate. Whereas class certification was a coin toss for employment discrimination cases (3 granted and 4 denied in 2015), class certification is easier in ERISA cases (5 granted and 2 denied in 2015), but most prevalent in wage & hour litigation (with 115 conditional certification orders granted and 38 denied, as well as 8 decertification motions granted and 14 denied).

7 An analysis of rulings in ERISA class actions in 2015 is set forth in Chapter VI.


The following map depicts this array of rulings:


The lessons to be drawn from these trends of 2015 are multi-faceted.

First, while Wal-Mart undoubtedly heightened commonality standards under Rule 23(a)(2) starting in 2011, and Comcast tightened the predominance factors at least for damages under Rule 23(b) in 2013, the plaintiffs’ bar has crafted theories and “work arounds” to maintain or increase their chances of successfully securing certification orders. In 2015, their certification numbers were up and their settlement figures were at record levels.

Second, the defense-minded decisions in Wal-Mart and Comcast have not taken hold in any significant respect in the context of FLSA certification decisions for wage & hour cases. Efforts by the defense bar to use the commonality standards from Wal-Mart and the predominance analysis from Comcast have not impacted the ability of the plaintiffs’ bar to secure certification orders under 29 U.S.C. § 216(b).

Third, while monetary relief in a Rule 23(b)(2) context is severely limited, certification is the “holy grail” in class actions, and certification of any type of class – even a non-monetary injunctive relief class claim – often drives settlement decisions. This is especially true for employment discrimination, ERISA, and wage & hour class actions, as plaintiffs’ lawyers can recover awards of attorneys’ fees under fee-shifting statutes in an employment litigation context.

Fourth, at the certification stage, courts are now more willing than ever before to assess facts that overlap both certification and merits issues, and to apply a more practical assessment of the Rule 23(b) requirement of predominance, which focuses on the utility and superiority of a preclusive class-wide trial of common issues. Courts are also more willing to apply a heightened degree of scrutiny to expert opinions offered to establish proof of the Rule 23 requirements. Notwithstanding these shifts in proof standards and the contours of judicial decision-making, the likelihood of class certification rulings favoring plaintiffs are “alive and well” in the post-Wal-Mart and Comcast era.

(iv) Complex Employment-Related Litigation Trends In 2015

While shareholder and securities class action filings witnessed an increase in 2015, employment-related class action filings remained relatively stable, but with a pronounced increase in certain categories, especially wage & hour lawsuits.

By the numbers, filings for employment discrimination and ERISA claims were down slightly over the past year, while the volume of wage & hour cases increased substantially. By the close of the year, ERISA lawsuits totaled 6,925 (down slightly as compared to 7,163 in 2014), FLSA lawsuits totaled 8,954 (up significantly as compared to 8,066 in 2014), and employment discrimination filings totaled 11,550 lawsuits (a decrease from 11,867 in 2014). In terms of employment discrimination cases, however, employers can expect a significant jump in the coming year, as the charge number totals at the EEOC in 2014 and 2015 were among the highest in the 48-year history of the Commission; due to the time-lag in the period from the filing of a charge to the filing of a subsequent lawsuit, the charges in the EEOC’s inventory will become ripe for initiation of lawsuits in 2016.

By the numbers, FLSA collective action litigation increased again in 2015 and far outpaced other types of employment-related class action filings. These filings represented another year-after-year increase in wage & hour litigation filed in federal courts since 2000; statistically, wage & hour filings have increased by over 450% in the last 15 years. Given this trend, employers can expect to see record-breaking FLSA filings in 2016. Various factors are contributing to the fueling of these lawsuits, including new FLSA regulations on overtime exemptions in 2016, minimum wage hikes in many states, and the intense focus on independent contractor classification and joint employer status, especially in the franchisor-franchisee context. Layered on top of those issues is the difficulty of applying a New Deal piece of legislation to the realities of the digital workplace that no lawmakers could have contemplated in 1938. The compromises


that led to the passage of the legislation in the New Deal meant that ambiguities, omitted terms, and unanswered questions abound under the FLSA (something as basic as the definition of the word “work” does not exist in the statute), and the plaintiffs’ bar is suing over those issues at a record pace.

Virtually all FLSA lawsuits are filed as collective actions, so these filings represent the most significant exposure to employers in terms of any workplace laws. By industry, retail and hospitality companies experienced a deluge of wage & hour class actions in 2015.

This trend is illustrated by the following chart:

The story behind these numbers is indicative of how the plaintiffs’ class action bar chooses cases to litigate. It has a diminished appetite to invest in long-term cases that are fought for years, and where the chance of a plaintiffs’ victory is fraught with challenges either as to certification or on the merits. Hence, this reflects the various differences in success factors in bringing employment discrimination and ERISA class actions, as compared to FLSA collective actions. Obtaining a “first stage” conditional certification order is possible without a “front end” investment in the case (e.g., no expert is needed unlike the situation when certification is sought in an ERISA or employment discrimination class action) and without conducting significant discovery due to the certification standards under 29 U.S.C. § 216(b). Certification can be achieved in a shorter period of time (in 2 to 6 months after the filing of the lawsuit) and with little expenditure of attorneys’ efforts on time-consuming discovery or with the costs of an expert. As a result, to the extent litigation of class actions by plaintiffs’ lawyers are viewed as an investment, prosecution of wage & hour lawsuits is a relatively low cost investment without significant barriers to entry relative to other types of workplace class action litigation. As compared to ERISA and employment discrimination class actions, FLSA litigation is less difficult or protracted, and more cost-effective and predictable. In terms of their “rate of return,” the plaintiffs’ bar can convert their case filings more readily into certification orders, and create the conditions for opportunistic settlements over shorter periods of time.


An increasing phenomenon in the growth of wage & hour litigation is worker awareness. Wage & hour laws are usually the domain of specialists, but in 2015 wage & hour issues made front-page news. The widespread public attention to how employees are paid almost certainly contributed to the sheer number of suits. Big verdicts and record settlements also played a part, as success typically begets copy-cats and litigation is no exception. Yet, the pervasive influence of technology is also helping to fuel this litigation trend. Technology has opened the doors for unprecedented levels of marketing and advertising by the plaintiffs’ bar – either through direct soliciting of putative class members or in advancing the overall cause of lawsuits. Technology allows for the virtual commercialization of wage & hour cases through the Internet and social media.

Against this backdrop, wage & hour class actions filed in state court also represented an increasingly important part of this trend. Most pronounced in this respect were filings in the state courts of California, Florida, Illinois, Massachusetts, New Jersey, New York, and Pennsylvania. California, in particular, continued its status in 2015 as a breeding ground for wage & hour class action litigation due to laxer class certification standards under state law, exceedingly generous damages remedies for workers, and more plaintiff-friendly approaches to class certification as well as wage & hour issues under the California Labor Code. For the third year out of the last four, the American Tort Reform Association (“ATRA”) selected California as the nation’s number one “judicial hellhole” as measured by the systematic application of laws and court procedures in an unfair and unbalanced manner.8 Calling California the “worst of the worst” jurisdictions, the ATRA described the Golden State as home to “irrepressibly plaintiff-friendly lawmakers and judges,” with “its often preposterous lawsuits and sometimes incredible court decisions that only encourage still litigation …”9

(v) Governmental Enforcement Litigation Trends In 2015

Meanwhile, on the governmental enforcement front, both the EEOC and the DOL expanded and intensified their administrative enforcement activities and litigation filings in 2015. At the same time, recoveries by settlement – measured by the top 10 settlements in government enforcement litigation – were more than double the level in 2014.

The EEOC marked important milestones in 2015, including the 50th anniversary of its founding, the 25th anniversary of the passage of the Americans With Disabilities Act, and the issuance of two Supreme Court decisions on key litigation issues for the Commission. The EEOC continued to follow through on the enforcement and litigation strategy plan it announced in April of 2006; that plan centers on the government bringing more systemic discrimination cases affecting large numbers of workers. As 2015 demonstrated, the EEOC’s prosecution of pattern or practice lawsuits is now an agency-wide priority. Many of the high-level investigations started in the last three years mushroomed into the institution of EEOC pattern or practice lawsuits in 2015. Under the Obama Administration, increases in funding expanded the number of investigators.

The Commission’s 2015 Annual Report10 also announced that it expects to continue the dramatic shift in the composition of its litigation docket from small individual cases to systemic pattern or practice lawsuits

8 The ATR Foundation’s 2015 Report is available at http://www.judicialhellholes.org/wp-content/uploads/2015/12/JudicialHellholes-2015.pdf

9 Id. at 5. The “ten worst” jurisdictions according to the ATRA report are: (1) California, (2) New York, (3) Florida, (4) Missouri, (5) Illinois, (6) Louisiana, (7) Texas, (8) Virginia, (9) West Virginia, (10) Pennsyvania, and (11) New Jersey.

10 The EEOC’s 2015 Annual Report is published at http://www.eeoc.gov/eeoc/plan/index.cfm.


on behalf of larger groups of workers. The EEOC’s FY 2015 Annual Report detailed the EEOC’s activities from October 1, 2014 to September 30, 2015. The EEOC’s Report indicated that:

• The Commission completed work on 268 systemic investigations in FY 2015, which resulted in 26 settlements or conciliation agreements that yielded a total recovery of $33.5 million for systemic claims; six of the settlements involved 50 alleged victims or more, and 13 settlements included 20 or more alleged victims. The FY 2015 recoveries represent an increase over recoveries in FY 2014 when the Commission netted only $13 million based on resolution of 78 systemic investigations.

• The EEOC recovered $356.6 million for alleged victims of employment discrimination in FY 2015 through mediation, conciliation, and settlements. This represented an increase of $60.5 million over FY 2014, when the Commission garnered $296.1 million for its enforcement efforts.

• For its lawsuits, the EEOC secured $65.3 million in recoveries in FY 2015. This figure was up more than $42.8 million as compared to the FY 2014 recoveries of $22.5 million. However, the EEOC resolved fewer lawsuits than it did last year, and recovered less money from those cases. Specifically, the EEOC resolved 155 lawsuits during FY 2015 for a total recovery of $65.3 million.

• The EEOC filed 142 lawsuits in 2015 (up slightly from the 133 lawsuits it filed in 2014), of which 16 cases involved claims of systemic discrimination on behalf of more than 20 workers, and 26 cases involved multiple alleged discrimination victims of up to 20 individuals. The EEOC had 218 cases on its active lawsuit docket by year end, of which 40% involved multiple aggrieved parties and 25% involved challenges to alleged systemic discrimination. Overall, this represented increases in these categories in terms of the make-up of the Commission's litigation being tilted toward systemic cases.

• The EEOC also received 89,385 administrative charges of discrimination, which was slightly up from the FY 2014 total of 88,778 charges. Thus, charge activity was one of the heaviest in the 52 year history of the Commission.

• More than in any other time in its history, the EEOC encountered significant criticism in the manner in which it enforced anti-discrimination laws. This criticism took various forms in terms of judicial sanctions, suits against the Commission by private litigants and States, and questioning by Congress over the EEOC’s alleged lack of transparency.

Against this back-drop, 2015 saw modest recovery numbers in recent years on the part of the EEOC.

While the inevitable by-product of these governmental enforcement efforts is that employers are likely to face even more such claims in 2016, the EEOC’s systemic litigation program is not without its detractors. Several federal judges entered significant sanctions against the EEOC – some in excess of seven figures – for its pursuit of pattern or practice cases that were deemed to be without a good faith basis in fact or law.11 The U.S. Supreme Court accepted for review in December 2015 the largest fee sanction ever leveled against the Commission – the $4.7 million fee award in CRST Van Expedited v. EEOC – and a ruling on the case is expected in 2016. Nonetheless, until then, the EEOC shows no signs of adjusting its litigation strategy in light of those sanction rulings, and employers can expect that the coming year will entail aggressive “push-the-envelope” litigation filings and prosecutions by the EEOC, as well as the filing of larger systemic cases.

11 An analysis of rulings in EEOC cases in 2015 is set forth in Chapter III, Section B.


Fiscal year 2015 marks another year in the EEOC’s 2012-2016 Strategic Enforcement Plan (“SEP”). The SEP was created in 2012 as a blueprint to guide the EEOC’s enforcement activity. Its most controversial and perhaps most far-reaching effect on the agency’s activity is the priority it gives to systemic cases: those pattern or practice, policy, or class-like cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area. Systemic cases have been the main driver of EEOC litigation over the past few years, and likely will be well into the future. The EEOC is now fighting challenges to its power to bring those cases on a number of fronts. Among other things, it is aggressively challenging any court’s ability to review how it conducts certain statutorily-mandated procedures before bringing suit, including how it investigates its cases and tries to conciliate those cases with employers. If successful in those efforts, the EEOC will have greatly eased its path to pursuing systemic cases.

The EEOC is not only expanding its reach in procedural terms, but also it is attempting to broaden the scope of its authority through an expansion of the scope of anti-discrimination laws themselves. In a number of recent cases, the EEOC has advanced novel legal theories that would, among other things, expand anti-discrimination protections to cover transgender employees and require employers to reasonably accommodate pregnant employees, even those who are experiencing normal pregnancies. The EEOC continues to push the edge of the envelope in any way it can, viewing itself as an agency that not only enforces the law, but one that expands the scope of those laws as well.

For this and other reasons, the agency has come under increasing scrutiny and criticism by Republican members of Congress. Such criticism is unlikely to stem the tide of systemic cases or deter the EEOC from continuing to try to expand its enforcement powers. There is still one year left to go in the 2012 SEP. Employers can expect the EEOC will use the next year to continue to push for expansion of its procedural and substantive limits.

The DOL also undertook aggressive enforcement activities in 2015. Over the past several years, the DOL’s Wage & Hour Division (“WHD”) fundamentally changed the way in which it pursues its investigations. Suffice to say, the investigations are more searching and extensive, and often result in higher monetary penalties for employers. According to the DOL, since early 2009, the WHD has closed 172,000 cases nationwide, resulting in more than $1.246 billion in back wages for over 250,000 workers. In FY 2015, the WHD collected more than $246 million in back wages, an increase of $6 million over the past year. Hence, in 2015, employers finally saw the impact of these changes on the WHD’s enforcement priorities, and 2016 is apt to bring much of the same. With new DOL leadership in place, employers can expect the WHD to find renewed vigor in its enforcement program.

The DOL also focused its activities on wage & hour enforcement on what it terms “24/7.” The WHD’s new Administrator, Dr. David Weil, is an architect of the WHD's fissured industry initiative. This initiative focuses on several priority industries, including food services (both limited service/full service establishments), hotel/motel, residential construction, janitorial services, moving companies/logistics providers, agricultural products, landscaping/horticultural services, healthcare services, home healthcare services, grocery stores, and retail trade. In FY 2015, the WHD assessed nearly $4 million in civil penalties to sub-groups within these fissured industries, representing an increase of $1 million over the previous year.

In 2016, the WHD is likely to continue its pursuit of strategies that focus at the top of industry structures – the companies that affect how markets operate. Employers can expect the WHD to engage in coordinated investigation procedures, focus on related business entities (e.g., franchisees, sub-contractors, staffing companies, etc.), rather than individual workplaces. As part of those investigations, the WHD will use its full spectrum of enforcement tools, including persuasion, education, penalties, hot goods provisions, and other legal tools.


On the ERISA enforcement front, the DOL’s Employee Benefits Security Administration (“EBSA”) recovered $696.3 million in benefits for direct payments to plans, participants, and beneficiaries. These enforcement efforts included 2,441 civil investigations and 89 lawsuits in FY 2015.

Not to be outdone, the National Labor Relations Board (“NLRB”) undertook an ambitious agenda in 2015 too. It reconsidered well-settled NLRB principles on joint employer rules and representative elections, entertained the possibility of extending the protections of the National Labor Relations Act (“NLRA”) to college athletes, and litigated novel claims seeking to hold franchisors liable for the personnel decisions of franchisees. More than any other area impacting workplace litigation, the NLRB also remained steadfast in its view that workplace arbitration agreements limiting class or collective claims are void under § 7 of the NLRA.

D. Trends For The Future Of Workplace Class Actions

The developing trends in workplace class action litigation are continuing to evolve. These trends require corporate counsel to plan and re-order their compliance strategies to stay ahead of and mitigate these risks and exposures.

So, what can corporate counsel expect in 2016?

Based on the developing trends, we anticipate significant developments in the coming year relative to certification rulings in employment discrimination and ERISA class actions; aggressive governmental enforcement litigation prosecutions; continuing growth in wage & hour litigation (fueled by new overtime regulations, local minimum wage legislation, challenges to independent contractor status and the “gig” business model, and litigation seeking to expand joint employer concepts); and more litigation over class action waivers in arbitration agreements.

Employment Discrimination Class Action Litigation – Both in terms of private plaintiff cases and government enforcement litigation brought by the EEOC, employers can expect this area to remain “white hot” in 2016. On the employment discrimination front, corporate counsel can expect to see the following developments:

• The plaintiffs' bar will continue the process of refining the architecture of employment discrimination class actions to increase their chances to secure class certification in the post Wal-Mart and Comcast era. Their focus is likely to be on smaller class cases (e.g., confined to a single corporate facility or operations in one state) as opposed to nationwide, mega-class action cases, as well as cases confined to a discrete practice – such as a hiring screen (e.g., a criminal background check) – that impacts all workers in a similar fashion.

• In terms of certification theories, the plaintiffs' bar is apt to pursue hybrid or parallel class certification theories where injunctive relief is sought under Rule 23(b)(2) and monetary relief is sought under Rule 23(b)(3), as well as a range of partial "issues certification" theories under Rule 23(c)(4). The take-away from this strategy is an effort to “aim small” in order to certify a piece of the litigation, and use fee-shifting statutes on attorneys’ fees to pressure employers into class-wide settlements.

• Plaintiffs are also likely to pursue certification of liability-only classes, while deferring damages issues and determinations, and pressuring employers to settle due to the transaction costs of individualized mini-trials on damages. In effect, this tactic is an end-run around the limitations on Rule 23(b)(3) articulated in Comcast.

Government Enforcement Litigation – At least until there is a potential change of the political party in control of the White House, employers can anticipate agressive enforcement of employment-related laws and regulations by the EEOC, DOL, and NLRB.


• In 2015, the EEOC continued to push its agenda through high-profile systemic cases. Employers can expect more of the same in 2016. The EEOC defines such cases as those that address policies or patterns or practices that have a broad impact on a region, industry, or an entire class of employees or job applicants. The EEOC has stated that it believes that those cases are key to its enforcement mission because they impact a large number of employees directly, and because they can drive change in company policies and industry standards.

• The EEOC's systemic litigation program therefore is expected to expand in 2016, with more filings, larger cases, and bigger monetary demands as the agency continues its aggressive enforcement activities. Corporate counsel also can expect to see more systemic administrative investigations relative to hiring issues (e.g., use of criminal histories in background checks) and those based on challenges to pay and promotions practices based on disparate impact theories due to alleged gender or race discrimination.

• Despite harsh criticism from employer groups and Republican members of Congress, as well as a series of courtroom setbacks for the EEOC in 2015 (with federal judges entering significant sanctions and fee awards against the Commission, which the government has uniformly appealed), it is expected that these rulings will embolden rather than damper the EEOC's aggressive enforcement of workplace bias laws. Additionally, the Supreme Court’s future decision on the fee sanction award in the CRST Van Expedited case may well impact the EEOC’s future philosophy in litigating pattern or practice lawsuits.

• The DOL, the NLRB, and the EEOC are likely to continue to “push the legal envelope” on joint employer, franchisor/franchisee, and the propriety of arbitration/class waiver issues.

• As the WHD seeks to put its imprimatur on DOL regulations and interpretations, it is apt to continue its aggressive enforcement activities. The WHD is posed to continue its focus on what it calls “fissured” industries, including restaurants, hotels, construction, janitorial services, healthcare, home healthcare, grocery, and retail. In its investigations, an increasing number of which appear to have been coordinated at higher levels of the agency, the WHD has been using its full assortment of enforcement tools, including the assessment of liquidated damages and civil money penalties, investigations spanning the three-year period for willful violations, and the use of media to influence the behavior of employers.

ERISA Class Action Litigation – The coming year in ERISA litigation promises to be yet another year of change and new rulings, with the U.S. Supreme Court expected to issue at least two ERISA decisions, one

on equitable remedies, and another on ERISA preemption. On the ERISA front, corporate counsel can

expect to see the following developments:

• Wal-Mart continues to play a central role in the certification of ERISA class actions, although it remains to be seen how much plaintiffs are able to make use of issue certification under Rule 23(c)(4) and sub-class certification to avoid commonality defenses.

• Following the Supreme Court’s recent decision in Fifth Third Bancorp v. Dudenhoeffer, 134 S. Ct. 2459 (2014), more ERISA “stock drop” class actions are apt to be filed, after years of success by the defense bar in beating back these cases.

Wage & Hour Class Action Litigation – On the wage & hour front, the deluge of FLSA filings – making wage & hour claims the most predominant type of workplace class action pursued against corporate America – is expected to continue with no end in sight. The wave of wage & hour filings has yet to crest. Corporate counsel, therefore, can expect to see a consistent level of significant litigation activity. Key areas to watch include:


• In terms of novel litigation theories, employers can expect an increase in off-the-clock litigation brought by non-exempt employees, fueled by new theories attacking employer rounding practices, and increased off-duty use of PDA's and other mobile electronic devices vis-à-vis the application of the continuous workday rule.

• Increased litigation also is expected over issues in independent contractor misclassification and joint employer liability cases, as well as off-the-clock work (including donning and doffing cases), unpaid overtime, missed or late meal and rest breaks, time-shaving, and improper tip pooling.

Proposed Overtime Regulations – In July of 2015, the WHD proposed the most significant change to federal wage & hour law in decades to effectuate revolutionary revisions to the “Section 541” regulations that define the “white-collar” exemptions to the FLSA. The bottom-line effect of the proposed regulations would be to disqualify millions of employees from the FLSA’s overtime exemptions. In summary, the DOL proposes to more than double the salary level necessary to qualify for the executive, administrative, and professional exemptions, and to increase substantially the threshold salary level for the highly compensated employee exemption. It also suggested that its final rule would provide for automatic annual increases, indexed to one of two metrics discussed in the DOL’s notice of proposed rule-making. If adopted, such indexing would surely raise minimum salary levels much higher in the future. Finally, the DOL suggested that the new regulations might include changes to the definitions of duties that qualify an employee as exempt. Not surprisingly, the proposed regulations have been widely publicized and debated. While the DOL has not provided any clear indication of when the final rules will be issued, a plausible estimate is summer or fall of 2016, with an effective date 90 days later.

Movement For Dramatic Local Minimum Wage Increases – The past year also saw major gains for the movement to increase the minimum wage to $15 per hour. While only a few major cities (e.g., Los Angeles, San Francisco and Seattle) have actually adopted ordinances that will raise the minimum wage to that level, the organized labor-backed push has received widespread media attention and a number of other cities and some states are considering similar proposals. As a result, employers can expect more local minimum wage increases in 2016.

Challenges To Treatment Of Service Providers As Independent Contractors – Another major substantive development has been a push to require businesses to treat more workers as employees, and therefore subject to wage & hour laws, rather than independent contractors whose compensation is unregulated. In July 2015, the WHD issued an “Administrator’s Interpretation,” in which it puts an aggressive spin on court decisions that distinguish employees from independent contractors and seeks to expand the DOL test applicable to the FLSA for determining employment – as opposed to independent contractor – status. Almost all service providers, the WHD intends to argue, must be treated as employees. As a result, employers can expect significant litigation in 2016 challenging independent contractor classification of large groups of workers.

Spill-Over Effect Of The DOL’s Focus – Plaintiffs’ wage & hour lawyers increasingly share the WHD’s focus on challenging the use of independent contractors. This trend may be intensified by several large settlements in 2015 involving this issue, including FedEx’s class action settlement of $228 million to California-based delivery drivers who claimed that their classification as independent contractors was improper. As success by the plaintiffs’ class action bar often serves to encourage “copy-cat” lawsuits, employers are apt to see an increase in private party class actions in this context.

Challenges To The “On Demand/Gig” Business Model – Increased scrutiny of independent contractors is also on a collision course with the growth of the “on-demand” marketplace, or “gig” economy, where the use of independent contractors is at the heart of many businesses’ operating models. Most prominently, Uber faces a class action claiming that it must treat its drivers as employees instead of independent contractors; the case is set for trial in June of 2016. The outcome of this closely watched case could have


far-reaching consequences and a profound impact on the viability of many other new-economy businesses. It might also deprive individuals of the informal work arrangements that are often available to independent contractors but incompatible with the highly regulated nature of an employment relationship.

Expansion Of Joint Employment Liability – The past year also saw significant steps by government enforcement litigators to expand the “joint employment” doctrine, which could impose additional wage & hour liabilities on many “upstream” businesses. In 2016, employers also can expect the EEOC and the private plaintiffs’ bar to push for expansion of joint employment status in government enforcement lawsuits and employment discrimination class actions. In its widely discussed Browning Ferris decision in 2015, the NLRB ruled that even indirect, unexercised ability to affect working conditions of a group of workers may be sufficient to make a company a joint employer of the workers, even if they are employees of a different entity. The WHD has promised an Administrator’s Interpretation, expected in 2016, advocating a similarly broad concept of joint employment in the FLSA context. Businesses that could be vulnerable to joint employer claims in 2016 include suppliers, contractors, lessors, private equity and venture capital investors, companies that outsource work, staffing agencies, franchisors, creditors, and parent entities that have subsidiary businesses.

Workplace Arbitration – In response to these substantive developments and the continued torrent of wage & hour cases, employers have looked for additional defenses. One continued bright spot was arbitration. As a result, the trend toward enforcing agreements to submit employment disputes, including wage & hour claims, to arbitration – and specifically to individual, non-class arbitration – continued. While the NLRB continues to insist that agreements to arbitrate on an individual basis violate the National Labor Relations Act, federal courts overwhelmingly continue reject this argument. Further, courts have increasingly ruled that the question of whether an arbitration agreement calls for class rather than individual arbitration is within the province of judges, not arbitrators. This development is important because courts have been far less willing than arbitrators to interpret arbitration agreements as authorizing class arbitration even when the agreements do not mention class arbitration at all. The Supreme Court also has made clear, most recently in its DirecTV decision, that it will not allow courts to engage in creative interpretation of arbitration agreements so as to allow class arbitration. Notwithstanding the FAA and the supremacy clause of the U.S. Constitution, California courts continued to bridle at enforcing arbitration agreements as written. In 2014, the California Supreme Court ruled in Iskanian, et al. v. CLS Transportation, 59 Cal. 4th 349 (2014), that the right to pursue state-wide penalties under the California’s Private Attorney General Act (“PAGA”) is non-waivable and therefore that an arbitration clause cannot limit an employee to seeking recovery based on his or her own personal harm. In 2015, the U.S. Supreme Court declined to review both Iskanian and Fowler, et al. v. Carmax, Inc., 2015 Cal. App. Unpub. LEXIS 559 (Cal. App. 2d Dist. Jan. 28, 2015), a California appellate decision following it. Employers continue to ask the U.S. Supreme Court to review the Iskanian rule, as applied in new cases, in hopes of gaining even greater assurance that they can agree with their employees to resolve disputes through ordinary bilateral arbitration without being forced into arbitration on a class, collective, or other representative basis. Finally, despite the cases that continue to uphold class action waivers in arbitration agreements, employers still seem reluctant to implement arbitration programs or revise their current arbitration agreements. The debate about the scope of class action waivers seems to be an obstacle, and there is still no “prevailing wisdom” as to whether to use class action waivers for all claims or to limit them to wage and hour disputes. Plaintiffs’ attorneys were diligent in 2015, however, in their efforts to remain the veritable thorn in employers’ collective sides by accepting as fact that class waivers are enforceable and that their class and collective actions are likely to be decertified, even if certified – or conditionally certified – earlier in a case. A number of those plaintiffs’ class action firms willingly, and almost gleefully, pursued claims in arbitration or in court on behalf of individual claimants or plaintiffs. Because of their zeal, in 2015 a number of employers faced hundreds of individual claims in arbitration after compelling several away from the courts where a sole litigant or several plaintiffs sought class or collective action relief. Other employers faced a similar surge of individual or multi-plaintiff cases filed in separate courts by former class or putative class members across multiple jurisdictions after convincing a court to decertify or refuse to certify a class that would otherwise have contained them. The


plaintiffs’ lawyers’ mantra seems to have been that they will give employers the arbitrations and decertification they desire, followed by the scourge of numerous individual actions (and the concomitant pressure to settle due to the cost of defense). In sum, these conditions add up to a litigation environment where arbitration defenses are apt to spawn various new and varied litigation approaches by both the plaintiffs’ class action bar and the defense bar. Employers can expect these litigation strategies to play out in earnest in 2016.

Certification Standards – The standards for certifying a class action under Rule 23, and for permitting employees to opt-in to would-be collective actions, remain important battlegrounds. Employers have enjoyed increasing success in preventing certification or moving for decertification, but plaintiffs’ counsel have responded by seeking certification of class actions as to specific issues, attempting – sometimes successfully – to expand the applicability of Rule 23(c)(4). When a class action or collective action has been decertified, some plaintiffs’ counsel – hoping to replicate the settlement pressure of a class or collective action – have filed individual wage & hour suits by many of the employees who were class or collective action members. The strategy appears to be to “win” a single plaintiff case and then seek multiple settlements on behalf of other individual plaintiffs. Some plaintiffs’ counsel have stated that their initial class action was filed primarily to obtain discovery and a class list of contact information, so that they can locate multiple individual plaintiffs for multiple individual lawsuits. Employer strategies to counter these efforts were sometimes successful in 2015, but plaintiffs’ counsel are likely to continue to try this tactic. Employers also have high hopes that the U.S. Supreme Court will limit the use of statistical sampling based in putative or certified class or collective actions, in which large numbers of employees each assert small-dollar claims. In Tyson Foods, Inc. v. Bouaphakeo, the Supreme Court agreed to consider whether plaintiffs can use statistical averages as proof that that a class of employees was denied overtime pay; and whether an overtime class action can include employees who did not actually suffer any lost overtime pay. At oral argument in November of 2015, however, the Supreme Court focused, instead, on the far narrower question of whether plaintiffs can rely on the burden-shifting rule of a 1947 opinion – Andersen v. Mt. Clemens Pottery Co. – to prove that a wage & hour violation occurred. It remains to be seen how this issue will play out in 2016.

Use Of Rule 68 To Counter Class Actions – The Supreme Court also agreed in 2015 to consider the circumstances in which a defendant might be able to block a class action from proceeding by making a Rule 68 offer of judgment for the full value of the named plaintiffs’ individual claims. A decision in the case – Campbell-Ewald Co. v. Gomez – expected in 2016, and is likely to have an important effect on employers’ ability to avoid wage & hour class or collective actions by mooting the named plaintiffs’ claims.

E. Conclusion

The one constant in workplace class action litigation is change. More than any other year in recent memory, 2015 was a year of great change in the landscape of Rule 23. As these issues play out in 2016, additional chapters in the class action playbook will be written.

The lesson to draw from 2015 is that the private plaintiffs’ bar and government enforcement attorneys are apt to be equally, if not more, aggressive in 2016 in bringing class action and collective action litigation against employers.

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 2016.

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