Seyfarth Synopsis: On February 13, 2020, Jerry Maatman, Seyfarth’s co-chair of its class action defense group, hosted a book launch event – for the 16th Annual Workplace Class Action Litigation Report – discussing key trends in workplace class action litigation in 2019. In this week’s blog video, Jerry discusses trends #2 and #3 from the book launch event. In Trend #2, he discusses highlights from the U.S. Supreme Court in 2019 and the impact of U.S. Supreme Court rulings. In Trend #3, Jerry discusses governmental enforcement litigation in 2019, which reflected that the U.S. Equal Employment Opportunity Commission’s (“EEOC”) lawsuit filings and settlements slowed significantly last year.  As a result, these developments represent the second and third trends of the 16th Annual Workplace Class Action Litigation Report (“WCAR”). Please look out for Trend #4 coming soon. Watch Jerry discuss these trends in the link below!

 

 

 

Seyfarth Synopsis: At our recent book launch for the 2020 Workplace Class Action, we discussed a circuit by circuit analysis of 303 certification orders in 2019. That analysis revealed interesting results including Plaintiff-centric success in certifying wage & hour cases at the highest rates of the decade. Conversely, employers fared well in the employment discrimination space. The location of these cases in “Plaintiff-friendly” jurisdictions also has continued to play an integral role. Jerry Maatman, senior partner at Seyfarth, analyzes these trends and more in our first exclusive video series of Workplace Class Action Trends in 2019 from his recent book launch event. Thank you for watching!

 

Seyfarth Synopsis: Jerry Maatman, Seyfarth’s senior partner who chairs our class action defense group, is joined by Alex Karasik, a labor and employment associate at Seyfarth, in discussing the impact of new state laws on Illinois workplaces, including the Illinois Workplace Transparency Act, the legalization of marijuana in Illinois, and the use of artificial intelligence in the recruitment and the hiring process. See the video below:

 

Seyfarth Synopsis: Last week, we were honored to have Erin Mulvaney, Senior Legal Reporter for Bloomberg Law, as our guest speaker for Seyfarth Shaw’s “Top Trends In Workplace Class Action Litigation” book launch event.  As the official book launch of our 16th Annual Workplace Class Action Litigation Report, attendees participated in the live event webcast and tuned in to see and listen to Erin’s in-depth analysis. Specifically, she spoke to our viewers about the most influential Supreme Court decisions of 2019, and gave her prediction for the hottest class action topics of 2020. Today’s post allows anyone who missed the event to see Erin’s entire presentation.  Watch it below!

 

Seyfarth Synopsis: Register today and come join us tomorrow at a Seyfarth Exclusive Event!

You are invited to join Erin Mulvaney, Senior Legal Reporter at Bloomberg Law, and Seyfarth Partner Gerald (“Jerry”) L. Maatman, Jr. tomorrow for a panel discussion marking the release of Seyfarth’s 16th Annual Workplace Class Action Litigation Report. Please click here to register. For those of you in the Midwest, please join us in person, meet Erin and network with like-minded attendees.

As we move into a shifting landscape of policy and litigation developments, employers are seeking insights to prepare for the challenges of the future workplace. At this important event, the presenters will provide their analyses of significant class action litigation trends of 2019, and a look ahead to likely developments in 2020. Jerry will also discuss the top class action rulings in 2019 and hot topics for 2020, including key trends in class certification, government enforcement litigation, and the U.S. Supreme Court.

In Person Panel Discussion:

Thursday, February 13th

11 a.m. – Noon Program
Noon – 1 p.m. Lunch

Seyfarth Shaw LLP
233 South Wacker Drive
Suite 8000
Chicago, Illinois 60606

Webinar:

Thursday, February 13th

Noon – 1 p.m. Eastern
11 a.m. – Noon Central
10 a.m. – 11 a.m. Mountain
9 a.m. – 10 a.m. Pacific

Speakers:

 

 

 

 

Erin Mulvaney is a senior legal reporter on Bloomberg Law’s labor team in Washington, D.C.. She specializes in employment law, covering legal developments around the country that have implications in the workplace from state laws to the ripple effects of Supreme Court rulings. She previously covered labor at the National Law Journal and the economy at the Houston Chronicle.

Gerald L. Maatman, Jr. is one of Seyfarth’s preeminent class action litigators, co-chair of our Class Action Litigation Practice Group, and the Editor of the Workplace Class Action Litigation Report, which is recognized as the nation’s most complete guide to workplace-related complex litigation.

Click here to register for this exclusive event!

By: Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Ala Salameh

Seyfarth Synopsis:  On February 10, 2020, the EEOC released its first-ever Annual Performance Report (“APR”) for Fiscal Year 2019 (see here). The APR is an analysis of the EEOC’s litigation goals and performance results, and contains important clues to the EEOC’s changing strategic objectives and potential future targets of heightened enforcement activity. It is a “must read” for all employers.

This is the first year that the EEOC has published an Annual Performance Report. The EEOC previously published one annual Performance Accountability Report (“PAR”) shortly after the end of its fiscal year. Starting this year, the PAR has been bifurcated into two separate reports. The first report was published in November 2019, entitled “Fiscal Year 2019 Agency Financial Report” (“AFR”). It was focused on the Commission’s financial health, overall initiatives, and objectives (see more here). The second report is this month’s publication, the APR, which discusses the agency’s Strategic Plan and performance results. The APR is an important tool for employers to gauge the Commission’s enforcement priorities and trends.

The APR is organized around the three Strategic Objectives outlined in the EEOC’s Strategic Plan for Fiscal Years 2018-2022 (“Strategic Plan”). The Strategic Plan should not to be confused with the EEOC’s Strategic Enforcement Plan – which specifically deals with litigation and other enforcement mechanisms. Those enforcement issues encompass just one of the three strategic objectives outlined in the Strategic Plan. The other two objectives are: (1) preventing employment discrimination and promoting inclusive workplaces through education and outreach; and (2) achieving organizational excellence increased its focus on robust outreach to vulnerable workers.

Consistent with these last two objectives, the APR reports that the EEOC is making new efforts to serve as a model workplace by revamping its own inclusion and diversity program reinforced by new technology, and has increased its focus on robust outreach to vulnerable workers.

Significant Drop In Total Filings And Systemic Case Filings

The APR reports that the EEOC filed 144 merits lawsuits in FY 2019, a decrease from the 199 merits lawsuits it filed in FY 2018. Among this array of filings were 100 lawsuits filed on behalf of individuals, 27 non-systemic lawsuits with multiple victims, and 17 systemic lawsuits.

“Systemic” suits are defined as lawsuits having “a broad impact on an industry, company or geographic area.” Between FY 2016 and FY 2018 the EEOC more than doubled its inventory of systemic lawsuits. During FY 2018, the Commission filed 37 systemic suits; in FY 2017 it filed 30; and in FY 2016 it filed 18. The 17 that were filed in FY 2019 is therefore a significant drop as compared to the prior two years and is even below the low FY 2016 number. Systemic lawsuits accounted for 12% of all merits suits filed in FY 2019, and 21.4 percent of all merits suits on the EEOC’s active docket (a total of 60 systemic lawsuits). The EEOC obtained relief for 2,022 victims of systemic discrimination, amounting to $22.8 million.

The Continued Importance Of The #MeToo Movement

Despite the drop in total number of filings, the Commission maintained its focus on sex-based discrimination, especially harassment and hostile work environment claims. The APR reports that sexual harassment lawsuits alone comprised roughly 43% of all merits suits filed in FY 2019. The EEOC filed 48 lawsuits pertaining to workplace harassment, of which roughly 70% arose out of hostile work environment claims based on sex.

The Commission has also teamed up with third-party organizations and other federal agencies to collect data and require reporting of sexual harassment, as well as maintaining its commitment to address ongoing issues. In terms of preventative efforts, the EEOC participated in over 700 partner activities with advocacy and business groups. Among the newest collaborations was a partnership with the National Science Foundation, which recently started requiring applicants to report and address sexual harassment as a condition of their grant awards. The Commission reported that it is also leveraging social media through its pilot “You’re Hired” campaign on Instagram to provide information about discrimination and sexual harassment to youth in summer jobs.

The Commission’s increased efforts in both enforcement and prevention demonstrate its lasting commitment to addressing sexual harassment and sex discrimination in the workplace.

Litigation Is A “Last Resort” And ADR Is A Heightened Priority

On February 4, 2020, EEOC Chair Janet Dhillon released the Commission’s 2020 priorities indicating that “litigation is truly a last resort,” signaling a potential shift towards heightened mediation efforts in place of litigation (read more here). The APR echoed the Commission’s 2020 priorities by focusing on its Alternative Dispute Resolution (“ADR”) efforts. During FY 2019, the Commission conducted 8,899 mediations, resulting in nearly $160 million in relief to charging parties. Further, 1,145 federal sector mediations were conducted, significantly reducing the inventory of federal sector disputes. Overall, 96.8% of those who participated in the Commission’s ADR program reported that they would pursue EEOC mediation for future charges filed.

The EEOC has also continued its efforts to increase employer participation in mediation. It held 357 employer ADR events across field offices and saw its respondent participation rate rise to 30.7% in FY 2019 from 27.6% in the prior year. The EEOC also continues to promote voluntary compliance through its conciliation program. The APR reports that the percentage of successful conciliations has risen from 27% in FY 2010 to 40% in FY 2019. For systemic charges, the success rate rose to 56% in FY 2019, compared to 46% in FY 2018.

Implications For Employers

The APR and the EEOC’s related publications provide practical insights into the Commission’s priorities amid an ever-changing social climate. Those publications consistently show that combatting sexual harassment and discrimination against vulnerable workers remain top priorities for the agency.

Moreover, while the Commission’s efforts and announcements appear to support the Commission’s reported goal of focusing more heavily on ADR rather than litigation, only time will tell if this trend will bear out. It remained true that the Commission pursued its mission with zeal during those parts of the year when it was acting with a quorum of Commissioners. Our year-end analysis and the EEOC’s own APR report card reflect relatively strong numbers in filings and recoveries in FY 2019, despite the loss of quorum during a significant part of the year.

Readers can also find this post on our EEOC Countdown blog here.

By Gerald L. Maatman, Jr.

Seyfarth Synopsis: Seemingly overnight, the #MeToo movement emerged as a worldwide social phenomenon with significant implications for the workplace and class action litigation. By 2019, it became clear that the movement is here to stay, and was not a passing fancy. In this age of connectivity, societal movements have unprecedented speed and reach. Traditional means of spreading information and generating social change have been supplemented – if not outright replaced – by the near-instantaneous ability of an idea or cause to go viral on social media. Nowhere over the past year was this more evident than with the #MeToo movement, as the chorus of victims’ voices and the media spotlight exposed sexual misconduct in the workplace.

Against this backdrop, many predicted that allegations of on-the-job sexual harassment would increase. The EEOC’s release of data on workplace harassment data in October of 2019 confirmed that reality and the widespread impact of the #MeToo movement throughout the country.

At the same time, many states reviewed their laws in the past 24 months in response to the #MeToo movement. Washington and California changed their laws in 2018 to bar employers from use of mandatory non-disclosure agreements for employees asserting sexual harassment and abuse claims. Illinois also enacted comprehensive legislation in 2019 that became effective on January 1, 2020, which mandates workplace anti-harassment training, bans arbitration and non-disclosure agreements that cover harassment and discrimination complaints, and requires disclosure of adverse judgments or rulings where allegations of sexual harassment formed the complaints. Several states – such as New York and New Jersey – also extended statutes of limitations, spurred on by revelations of sexual abuse in the Catholic Church and in #MeToo reports. More than any other state, California has been in the forefront of introducing “#MeToo bills,” including banning mandatory arbitration clauses in contracts, which require workers to waive the right to take an employer to court in the event of a dispute. In sum, these legislative changes lead to an uptick in #MeToo litigation in these states in 2019, and more case filings are expected in 2020.

The increasing number of sexual harassment claims in the corporate world as part of the #MeToo movement also has led to a number of high-profile employment-related claims. These types of settlements gained momentum in 2019, as plaintiffs’ lawyers secured a $215 million class action settlement for victims of sexual abuse who had sued the University of Southern California.

On the heels of those claims are a growing number of shareholder derivative and securities class actions. In 2017, 21st Century Fox reached a $90 million settlement with shareholders over losses related to two harassment scandals. Additional class actions were filed against other organizations in 2019, including a lawsuit that resulted in a $41 million settlement with Wynn Hotels. The derivative lawsuits are brought by plaintiff-shareholders purportedly acting on behalf of the company asserting claims for breaches of fiduciary duty and waste of corporate assets against board members and corporate executives. These complaints generally allege that these executives or board members had actual knowledge of or declined to act on sexual misconduct incidents and that, once aware of the incidents, they failed to take appropriate action or concealed the misconduct from shareholders and other stakeholders in the company. Derivative plaintiffs may also allege the misuse of corporate assets and legal resources for settlements and other payments to alleged harassers.

These derivative actions raise significant issues concerning the legal duties of corporations and their boards to monitor potential sexual misconduct by senior executives and other employees. While a corporate board generally has no duty to monitor a corporate officer’s personal behavior, sexual misconduct by an executive in the workplace may trigger liability if the directors consciously allowed the unlawful conduct to occur or failed to establish a compliance system to facilitate employee reporting of sexual harassment and to ensure that the company appropriately investigates and addresses any such allegations. These types of claims are expected to increase in 2020, as the #MeToo movement continues to expand.

By Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth SynopsisOn February 4, 2020, EEOC Chair Janet Dhillon’s released a list of priorities for the Commission in 2020. While the priorities primarily focus on continuing to seek justice for workers raising claims of discrimination, Chair Dhillon’s announcement also provides a welcome glimmer of hope for employers, particularly in its acknowledgment that litigation against employers should be “truly a last resort.” The list of priorities is a must read for all employers.

On February 4, 2020, EEOC Chair Janet Dhillon issued a media statement announcing the Commission’s priorities for 2020. Those priorities can be found here. They should be viewed and considered in conjunction with the EEOC’s 2017-2021 Strategic Enforcement Plan, which was promulgated by the EEOC in October 2016 and can be found here. However, the February 4 announcement appears to signal something of a shift for the agency.

In a short and concise statement, Chair Dhillon outlined five priority categories for the EEOC in 2020. These categories include: (1) continuing to provide excellent customer service to those who access the Commission’s processes; (2) continuing to provide robust compliance assistance; (3) enhancing efforts to reach vulnerable workers; (4) strategically allocating the Commission’s resources; and (5) continuing the Commission’s efforts to be a model workplace.

A Continued Focus On Reaching And Protecting Vulnerable Workers

In line with the EEOC’s 2017-2021 Strategic Enforcement Plan, Chair Dhillon’s 2020 priority list continues to focus on ensuring that vulnerable workers are protected from civil rights violations and discrimination. The 2020 priorities emphasize providing outreach to and enforcing the rights of vulnerable populations in the workplace. The EEOC has typically taken a fairly expansive definition of vulnerable populations, but in recent years (as reported by in our previous posts here), this priority has tended to focus on migrant and immigrant workers and, possibly, a new and heightened awareness of national origin discrimination. In recent years, this vulnerable population also has included young women targeted by sexual harassment, particularly in the hospitality industry.

A Renewed Emphasis On Outreach, Conciliation, And Mediation Ahead Of Litigation

But in what will hopefully be a promising trend for employers, the 2020 priorities appear to signal a shift away from the Commission’s litigation efforts in favor of greater concentration on the EEOC’s goals to continue to build its mediation program in the private and federal sectors, to make a renewed commitment to “meaningful and effective” conciliation efforts in all private sector cases, and to build strong partnerships with employers to provide education and outreach in the private, public, and federal sectors.

Although the Chair’s priority list acknowledges that the Commission will continue to pursue its litigation agenda vigorously, it auspiciously opines that “litigation is truly a last resort and not an appropriate substitute for rule-making or legislation.” This statement could be a glimmer of hope for employers that the EEOC will take a step back from what some have called a “shoot first and aim later” litigation strategy.

Ongoing Efforts To Decrease The Charge Backlog

Over the past few years, the EEOC has made significant efforts to decrease its backlog of filed charges. Chair Dhillon’s priorities indicate that those efforts will continue into 2020, as the EEOC focuses on reducing inventory levels of private and public sector charges and federal sector hearings and appeals, embracing technology, and using data analytics to help data-driven decisionmaking to improve customer service (an accounting of the filed charge statistics for 2019 can be found here).

An Aim To Reduce Confusion Related To EEOC Guidance And Enforcement

In an effort to help employers comply with civil rights laws, Chair Dhillon’s priority list indicates that the Commission will work in 2020 to update its guidance and technical assistance documents so that they contain “a clear explanation of the law.” The Chair’s list acknowledges that unclear or out-of-date guidance from the Commission raises the potential for confusion among the EEOC’s stakeholders. The list also mentions that such guidance may “exceed the Commission’s statutory authority,” which could be a tacit acknowledgment of the EEOC’s recent troubles getting the federal courts to buy into the agency’s interpretation of the federal anti-discrimination laws. (For example, our discussion of the Fifth Circuit’s rejection of the EEOC’s criminal history guidance is here.)

Implications For Employers

While Chair Dhillon’s 2020 priorities clearly emphasize improving customer service for workers filing charges of discrimination and reaching vulnerable populations in the workplace, they also include a welcome and long-awaited signal that the EEOC finally may be starting to approach mediation and conciliation in a more meaningful way, rather than moving rapidly to enforcement in the federal courts. Only time will tell if that priority translates into less litigation.

By Gerald L. Maatman, Jr.

Seyfarth Synopsis: Our previous blog post gave our readers an in-depth look at class action settlement developments in 2019, the fourth trend of this year’s Workplace Class Action Report (“WCAR”).  In terms of the top ten largest settlement among substantive areas of class action litigation, the monetary value of major case resolutions remained low in 2019. In fact, as compared to 2017, top settlement numbers have declined by more than a billion dollars. Today, Seyfarth partner Jerry Maatman explains the factors influencing this dramatic change, as well as what employers can expect regarding class action settlements in 2020.  Watch Jerry’s analysis in the video below!

 

Seyfarth Exclusive! In Person Event & Live Webinar

You are invited to join Erin Mulvaney, Senior Legal Reporter at Bloomberg Law, and Seyfarth Partner Gerald (“Jerry”) L. Maatman, Jr. for a panel discussion marking the release of Seyfarth’s 16th Annual Workplace Class Action Litigation Report. Click here to register. For those of you in the Midwest, please join us in person, meet Erin and network with like-minded attendees.

As we move into a shifting landscape of policy and litigation developments, employers are seeking insights to prepare for the challenges of the future workplace. At this important event, the presenters will provide their analyses of significant class action litigation trends of 2019, and a look ahead to likely developments in 2020. Jerry will also discuss the top class action rulings in 2019 and hot topics for 2020, including key trends in class certification, government enforcement litigation, and the U.S. Supreme Court.

In Person Panel Discussion:

Thursday, February 13th

11 a.m. – Noon Program
Noon – 1 p.m. Lunch

Seyfarth Shaw LLP
233 South Wacker Drive
Suite 8000
Chicago, Illinois 60606

Webinar:

Thursday, February 13th

Noon – 1 p.m. Eastern
11 a.m. – Noon Central
10 a.m. – 11 a.m. Mountain
9 a.m. – 10 a.m. Pacific

Register today to attend!