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1, 2007. In 2008, at least 2,614 wage and hour class actions were filed in federal and state courts, based on “unofficial” information from various secondary sources, including Courthouse News and CourtLink.
In 2009, based on these sources and others, 5,786 such cases were identified. Although the number of filings in 2008 may be understated, in 2009 wage- and-hour class action filings clearly increased by at least 40%. The number of reported wage-and-hour class action settlements and verdicts also increased, from 86 in 2008 to 124 in 2009, based on sources such as Employment Law 360, the Daily Labor Report, newspapers and a variety of other publications. The settlement amounts used are the gross settlements reported, including attorney fees and costs. Despite the increase in numbers of settlements and verdicts, however, the average settlement and verdict decreased slightly from $8,876,357 in 2008 to $8,236,499 in 2009. Additionally, the amount awarded per work week for a fulltime employee remained relatively constant, with $100 per work week representing the plaintiff’s “rule of thumb” for lawsuits filed for California workers and significantly less ($25 to $35 per work week) for non- California settlements.
The growth of wage-and-hour class actions has been matched by the Obama administration’s pledge to make wage-and-hour enforcement a priority. In September 2009, Secretary of Labor Hilda L. Solis announced, “Make no mistake, the DOL is back in the enforcement business.” CCH WorkWeek, Week of Sept. 21, 2009,
http://hr.cch.com/netnews/ employment-law/
emp092109.asp. This year, the DOL, together with advocacy groups, embarked on a “public awareness” program to inform workers about their rights. U.S. Department of Labor, Wage and Hour Division News Release, Nov. 19, 2009, www.
dol.gov/opa/media/press/whd/whd20091452.htm . The DOL has hired 250 new investigators, a one-third increase. In 2008, the DOL found violations in 78% of its investigations and collected $185 million in back wages for 228,000 employees. See
www.dol.gov/whd/ statistics/
2008FiscalYear.htm . As DOL enforcement initiatives engage, these numbers may seem modest.
To picture what has occurred, imagine a highway with 50-year-old speed laws, only an occasional highway patrol car monitoring traffic and many drivers who are used to years of traveling in excess of the speed limit. Suddenly, 250 new patrol officers arrive armed with tracking radar. Strict compliance with the decades- old speed law would become essential. This is exactly what is happening with wage and hour enforcement. Although the law has remained the same, class actions
and government compliance efforts are skyrocketing, causing everything to change. Until 2009, California led the nation both in number of wage-and-hour class actions and size of settlements. Between 2000 and 2005, employment class actions in California state courts grew more than any other type of class action, increasing by 313.8%. See
www.courtinfo.ca.gov/ reference/
caclassactlit.htm . Most cases were filed under California’s unique state wage laws, which are generally broader than the FLSA and provide greater penalties and damages.
Although many employers believed their FLSA-based pay practices had merely hit uniquely California land mines, such as more stringent exemption requirements, pay issues were percolating on the East Coast and in the Midwest. Exemption from overtime, independent contractor status, off-the-clock work, commissions, tip pooling, travel time, pre-and post-work activities and meal periods were being raised as issues in employment litigation everywhere under the FLSA and various state laws. By 2009, more wage and hour class actions were filed in Florida than California, and every state recorded such lawsuits. Illinois, New York and Texas saw significant growth, totaling more than 1,200. Filings in Alabama, Georgia, Illinois, New Jersey, Ohio, Oregon and Pennsylvania reached triple digits. By the end of 2010, more than half of the wage-and-hour class actions will be filed outside of California and Florida, with accelerated growth in populous East Coast and Midwestern states.
Industry wide actions In addition to national expansion, lawyers increasingly are identifying and challenging industry-based pay practices. For example, in 2009, actions against health care employers increased dramatically, starting with cases filed by a Rochester, N.Y., law firm against several large health care systems in the Northeast. See, e.g., Hintergerger v. Catholic Health Sys., 2009 U.S. Dist. Lexis 97944 (W.D.N.Y. Oct. 20, 2009); Taylor v. Pittsburgh Mercy Health Sys., 2009 U.S. Dist. Lexis 57328 (W.D. Pa. July 7, 2009); Colozzi v. St. Joseph’s Hosp. Health Ctr., 595 F. Supp. 2d 200 (N.D.N.Y 2009).
The initial suits have now snowballed and given rise to “copycat” suits across the country. See, e.g., Bajestani v. Consulate Healthcare, No. 1:10-cv-00030 (E.D. Tenn. Feb. 17, 2010); Cason v. Vibra Healthcare, No. 5:10-cv-10642 (E.D. Mich. Feb. 12, 2010); DeMarco v. Northwestern Mem’l Healthcare, No. 1:10cv397 (N.D. Ill. Jan. 20, 2010); Creely v. HCR ManorCare Inc., No. 3:09-CV-02879 (N.D. Ohio Dec. 11, 2009). These cases typically assert claims for work allegedly performed
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