Apr12_360x216.jpgBy Laura J. Maechtlen

We were honored to present today on workplace class action issues at the Annual Conference of the Risk and Insurance Management Society (RIMS) in Philadelphia with Thomas P. Hams, EPLI Practice Leader at Aon Risk Solutions, and Nicole Franzese, Senior Risk Manager at Best Buy Co., Inc. RIMS is the largest insurance-based educational meeting in the world, and its annual meeting is attended by thousands of insurance executives and corporate representatives from around the world.

Our presentation was entitled “Are Employment Class Actions Dead After Walmart & AT&T?”  A copy of our PowerPoint is here. The mobile app can be downloaded here.

The panelists discussed trends in workplace class action litigation in 2011 and 2012, and the aftermath and evolution of the headline-grabbing U.S. Supreme Court decisions Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011), and AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011). As highlighted in the presentation, class actions are not “dead” – although many employers and attendees at the conference today might wish they were. [We were also featured on this topic over the weekend in the Chicago Tribune’s focus on workplace class actions].

As highlighted by the panelists today, Wal-Mart Stores, Inc. v. Dukes caused both federal and state courts to conduct a wholesale review of the propriety of previous class certification orders in pending cases, prompted defendants to file new rounds of motions based on Wal-Mart to attack a variety of class theories (not just those rejected by the Supreme Court), and reverberated in case law rulings on a myriad of Rule 23-related issues in a variety of cases in all substantive areas, not just workplace discrimination cases. In addition, the panelists discussed how Wal-Mart has led the plaintiffs’ bat to reboot their class theories by focusing on smaller claims, regional claims, or a retooling the architecture of putative class claims in an effort to side-step Wal-Mart.

The panelists also discussed the viability of workplace arbitration agreements, and whether and why some employers have implemented, expanded, and altered their arbitration agreements as a result of the AT&T decision and its progeny. The panel discussed how AT&T has fueled significant litigation over the impact of workplace arbitration agreements and the impediments such agreements may impose on employment discrimination class actions and wage & hour collective actions. As recognized in our discussion today, the AT&T decision has also spawned significant “second generation” analysis when employers and employers alike have restructured and reformed their strategies related to arbitration in preventing, alleging, and defending class action lawsuits at the federal and state level. Because there is a myriad of potential issues arising in the arbitration context, the panelists advised that employers should have a “toolkit” of considerations – both “pros” and “cons” of arbitration from a practical and legal perspective – when considering whether to change or implement a workplace arbitration program. A non-comprehensive list of those factors can be found in the presentation materials linked to this post (see Slides 13-18).

Finally, Tom Hams from Aon provided some interesting analysis from a broker’s perspective on employment liability practices trends, which included increased activity by the EEOC and the OFCCP, addition of new protected status categories under statutory law, and a surge of disability claims in administrative and judicial proceedings. Tom also shared statistics and trends in several categories including EPLI large loss trends, EEOC charge patterns, workforce trend issues, and class action filings in the last year (see Slides 23-33). 

Based on the trends identified at the RIMS presentation, class actions are alive and well, as are governmental enforcement actions.

We hope you find the power point useful, and hope to see some of you this week at the RIMS conference!