Workplace Class Settlement Values, Certifications Soared in 2022

The workplace plaintiffs’ bar scored settlements worth nearly $2 billion combined and had a high rate of success gaining class certifications in employment bias, benefits, and wage and hour cases in 2022, according to a report from the law firm Duane Morris LLP.

Government enforcement actions decreased in 2022, but “more aggressive federal and state agency litigation against corporations” is expected for 2023, the report said.

Employment Discrimination

• The 10 highest settlements in class employment discrimination cases in 2022 totaled $597 million, including $175 million Sterling Jewelers Inc. paid to settle a long-running sex bias suit and Google LLC’s $118 million resolution of a pay discrimination case.
• Nine of those settlements came in sex bias-based lawsuits, and the other one came in a religious discrimination case over Covid-19 vaccine requirements.
• Class certification was granted 53% of the time it was sought in workplace discrimination suits, or in 8 out of 15 cases.

ERISA

• The year’s 10 highest-grossing ERISA class settlements were worth a combined $400 million. Most of that amount came from a $267 million settlement between PricewaterhouseCoopers LLP and a class of about 16,000 retirees who’ve spent 16 years litigating over various aspects of their pension plan.
• More than half of the year’s 10 largest settlements were reached in cases challenging the fees or performance of various 401(k) plan investments. These deals, signed by Wells Fargo & Co., Takeda Pharmaceuticals USA Inc., Walgreen Co., and others, were together worth about $110 million.
• ERISA plaintiffs’ class certification motions were successful in 18 of 23 cases or 78% of the time. This success rate is higher than that seen in employment discrimination, antitrust, and data breach litigation, but lower than success rates in cases alleging securities fraud or violations of the WARN Act.

FLSA/WARN Act

• The 10 highest-grossing wage-and-hour settlements in 2022 were worth more than $574 million combined. Nearly a third of the total came from a $185 million accord between Major League Baseball and minor league players who said MLB violated state and federal wage laws, including minimum wage requirements. The deal received preliminary approval in August.
• Six of the 10 highest reported wage-and-hour settlements came from state court cases, totaling nearly $301 million. Three of the federal court settlements, worth more than $250 million combined, took place in the Northern District of California, with a fourth—in the bottom slot at $23.1 million—in the District of Maine.
• Courts certified classes in 100% of the WARN Act cases that resulted in a decision this year. Judges granted conditional collective certification in FLSA cases 82% of the time, or 175 of 218 cases, and decertified collectives in nine of 18 cases. Those rates are in line with historic figures.

EEOC Enforcement

• The EEOC and other labor agencies’ top 10 class action settlements recovered a combined $403 million in 2022 (more than doubling the top 10 settlements in 2021), including the $18 million the agency collected in settling its sexual harassment and pregnancy bias lawsuit against Activision Blizzard Inc. and the $8 million Circle K Stores Inc. paid to end a pregnancy and disability discrimination charge investigation.
• The EEOC filed 94 lawsuits in fiscal 2022, a “mild decrease” from the 114 it filed in fiscal 2021, but exceeding the number filed in 2020 when the Covid-19 pandemic caused filings to drop to just 33.
• Its current docket of pending “systemic” discrimination cases is down to 29, far fewer than the 71 at the end of fiscal 2018.