Wage & Hour Class and Collective Action Review — 2023 - Report - Page 15
In light of these results, particularly the ease with which first-stage conditional
certification can be achieved, it is no surprise that the number of FLSA collective actions
filed in 2022 rose as compared in 2021. This rise may portend a continued increase in
wage and hour litigation under the FLSA in 2023.
B.
Significant U.S. Supreme Court Decisions Curtailed Employers’ Arbitration
Defenses
As the ultimate referee of law, the U.S. Supreme Court’s decisions carry unequaled
weight in defining and shifting the boundaries of the class action playing field. Its
decisions with regard to the wage & hour space are no less consequential.
Of all defenses, a defendant’s ability to enforce an arbitration agreement containing a
class or collective action waiver may have had the single greatest impact in terms of
shifting 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 hurdle
to widespread adoption of such agreements. In response, more companies of all types
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© Duane Morris LLP 2023
Wage & Hour Class And Collective Action Review – 2023
