In light of these results, particularly the ease with which first-stage conditionalcertification can be achieved, it is no surprise that the number of FLSA collective actionsfiled in 2022 rose as compared in 2021. This rise may portend a continued increase inwage and hour litigation under the FLSA in 2023.B.Significant U.S. Supreme Court Decisions Curtailed Employers’ ArbitrationDefensesAs the ultimate referee of law, the U.S. Supreme Court’s decisions carry unequaledweight in defining and shifting the boundaries of the class action playing field. Itsdecisions with regard to the wage & hour space are no less consequential.Of all defenses, a defendant’s ability to enforce an arbitration agreement containing aclass or collective action waiver may have had the single greatest impact in terms ofshifting the pendulum of class action litigation. With its decision in Epic Systems Corp.v. Lewis, et al., 138 S. Ct. 1612 (2018), the U.S. Supreme Court cleared the last hurdleto widespread adoption of such agreements. In response, more companies of all typesDM39529965.115© Duane Morris LLP 2023Wage & Hour Class And Collective Action Review – 2023
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