The dawning of a new year means it is time to look back at the number of cases filed in federal courts during the past year under the Fair Labor Standards Act. Every year seemingly without fail, that number goes up. 2014 was no exception.
According to figures from PACER, litigants filed a total of 8,086 FLSA cases between January 1, 2014, and December 31, 2014. For comparison purposes, plaintiffs filed 7,904 FLSA cases in 2013. That is an increase of more than more than 19% since 2011, and not just breaching the 7,500 case mark, but also the 8,000 case mark for the first time. Just for reference, PACER reports just 3,606 FLSA cases were filed a decade ago in 2004. Part of this increase is due in part to plaintiffs, plaintiffs’ attorneys and the government (Secretary Perez’s administration alone brought more than 150 cases last year) being both more familiar with workers’ rights under the FLSA and more aggressive in asserting those rights.
For the visual learners, you can see the sharp growth in FLSA filings over the past 20 years as FLSA minimum wage and overtime lawsuits have increasingly crowded the federal civil docket.
The chart shows that litigants filed 888 FLSA lawsuits in 1990, according to PACER. The number barely fluctuated over the next 10 years until the numbers began their sharp upward swing. In 2002, plaintiffs filed 3,886 FLSA lawsuits, more than double the 2001 total. Filings quickly reached the 5,000 case plateau, held generally steady, and then resumed their rise with the onset of the so-called Great Recession, jumping to 6,120 in 2009, and 6,786 in 2010. FLSA lawsuits crossed 7,000 and 7,500 annually in 2012, and over 7,900 in 2013. In 2014, FLSA lawsuits topped their 2013 all-time high with 8,086 lawsuits, breaching 8,000 for the first time.
Importantly, these statistics do not capture any wage and hour lawsuits based on state law claims or brought in state courts. Anecdotally, we can report that those cases have continued to increase as well. The totals above would look even more ominous if you added lawsuits filed under state wage and hour laws, too.
As in prior years, the majority of FLSA lawsuits focused on uncompensated or miscalculated overtime, uncompensated “off the clock” work, and misclassification of employees. The growth of these lawsuits continues to present challenges to employers, particularly given the FLSA’s dusty, 1930s- and 1960s-era statutory and regulatory language that is increasingly ill-suited to today’s workplaces. Combined with the DOL’s decision to stop issuing FLSA opinion letters or other regular guidance, employers face the triple threat of a lack of clarity, potentially lucrative recoveries (for plaintiffs and their attorneys) beyond any actual damages, and an enforcement environment where the hot “wage theft” buzzword is used to tar every employer, regardless of intent.
With any luck, an improving economy and a common sense regulatory rewrite by the DOL this year (hey, a guy can hope, right?) will blunt some of these dismal numbers when we revisit this topic early in 2016.