Wage & Hour Class and Collective Action Review — 2023 - Report - Page 11
Significant developments and trends emerged in wage & hour litigation in 2022. Further,
the U.S. Department of Labor has indicated its intention to broaden the number of
employees that are eligible for overtime pay, in part by revising the executive,
administrative, and professional exemptions to the FLSA.
While the impact of anticipated actions cannot be yet known, the Duane Morris Wage &
Hour Class Action Review is intended to not only to explain recent developments that
have occurred, but also their importance on the challenges facing employers in 2023
and beyond.
A.
Plaintiffs Saw Continued Success In Achieving Certification In Wage &
Hour Collective Actions In 2022
In 2022, the plaintiffs’ class action bar succeeded in certifying class actions at a high
rate. Certification trends in the wage & hour space similarly saw high success. With the
FLSA perhaps the most common vehicle for plaintiffs to assert wage & hour claims
against employers, it is no surprise that courts issued more certification rulings in FLSA
collective actions than in any other type of case.
The ease by which plaintiffs can obtain conditional certification surely contributes to the
allure of that space to members of the plaintiffs’ bar. The plaintiffs’ bar has succeeded in
gaining conditional certification in FLSA matters at a high rate year over year,
contributing to the volume of filings in this area.
In 2022, courts considered more motions for certification in FLSA matters than in any
other substantive area. Overall, courts issued 236 rulings on FLSA collective actions.
Of these, 219 rulings addressed first-stage motions for conditional certification of
collective actions under 29 U.S.C. § 216(b), and 18 addressed second-stage motions
for decertification of collective actions.
Due to the low burden at the conditional certification stage, plaintiffs historically have
enjoyed a high rate of success on such motions. Rulings in 2022 were no exception.
Of the 219 rulings that courts issued on motions for conditional certification, 180 rulings
favored plaintiffs, for a success rate of 82%. Such a rate is in line with and slightly
higher than the historic rate of success that plaintiffs have achieved with respect to such
motions, and exceeds the success rate of nearly 75% by the plaintiffs’ bar in obtaining
or maintaining class certification across all major types of class actions in 2022.
DM39529965.1
11
© Duane Morris LLP 2023
Wage & Hour Class And Collective Action Review – 2023
