A recent Lex Machina study found that the number of federal employment cases filed in the second and third quarter of 2020 was down. Overall, the filings this year have been lower when compared to the number of filings in 2018 and 2019. Not surprisingly, harassment and discrimination cases showed the biggest decrease, by almost 20%, likely due to the increase in remote work and decrease in actual interaction between workers. However, Family and Medical Leave Act (FMLA) claims and wage and hour cases under the Fair Labor Standards Act (FLSA) were down about 10%.
To employment practitioners, this is no surprise. Juno Turner, litigation director for work-place focused impact litigation group Towards Justice states that cases have dropped, “…partly because, as someone who is trying to file cases during that time, [I know] it was difficult”. Workers have filed 2,500 accommodation claims in the first three quarters of 2020 which is less by about 200 cases compared to 2019.
Brian Murphy, a defense litigator and partner at Sheppard Mullin Richter & Hampton LLP, believes that a decline in harassment and discrimination cases may have a lot to do with many jobs being remote. He claims that, “when there’s less opportunity for person-to person interaction… claims like harassment or discrimination are expected to fall”. He also suggests that workers may be hesitant to file claims against businesses that are struggling during the pandemic. Peter Romerr-Friedman, a plaintiffs’ employment lawyer with Gupta Wessler PLLC concurred, believing that, filing claims against ailing businesses may not be worth the trouble. “Lots of employers are going bankrupt or out of business, and workers and their counsel have to think about whether the defendant is judgement-proof”, he states.
Lex Machina assessed employment lawsuits in the year of 2020 that were filed ‘but for’ the pandemic because of the allegations are tied to it, or that the alleged pandemic related situation worsened the grievance. Out of 309 such cases, 200 came from the third quarter of the year alone. Within these suits, 228 include claims of workers stating that they were retaliated against for reasons related to the virus. Murphy states that he expects to see more wage claims going forward due to complications the pandemic created. Remote work has made it more difficult for employers to track their employees work hours and determine how much to pay. “When someone is at home and they’re taking breaks to attend to personal tasks, walking the dog, et cetera, it gets a little bit squirrely”, Murphy said. Prior to the Pandemic, it was easier to track employee hours because people would come into the workplace and visibly work.
Lastly, Lex Machina found that cases have taken longer to reach trial during the pandemic. In the first three quarters of 2020 it took an average of 859 days for 136 cases to reach trial. In contrast, it took 721 days on average for 285 cases to reach trial over the same period of time in 2019. Courts, however, have been diligent in processing cases. Similarly, 2,000 cases have been resolved via summary judgment in an average of 627 days, compared to the 2,400 cases that were resolved in 609 days in 2019.
Although filings are down, employers should not interpret the decline in litigation as a decreased need for vigilance, especially for FLSA (and state wage and hour) claims. As things continue to progress its almost a certainty that filings will increase, especially those of the wage and hour variety. With more employees working remotely, it is difficult for employers to properly monitor when everyone is/is not working and will almost assuredly lead to an increase in compensation claims.
About Harrison Oldham
Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.
Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://