FLSA Cases Climb to All-Time High With No End in Sight

By: Marty Heller

The Federal Judicial Center, which maintains statistics on the filing of federal lawsuits, has released its statistics for lawsuits filed in 2013. The results are grim for employers. The filing of FLSA lawsuits increased 10% nationwide. In total, more than 7,700 FLSA lawsuits were filed in federal courts last year, up from just over 7,000 last year. Almost 1/3 of the lawsuits are filed in the Eleventh Circuit (Florida, Georgia and Alabama). Even more frightening, these figures only capture the federal lawsuits. Thousands of wage and hour lawsuits are filed every year under state laws, such as California’s Private Attorney General (PAG) actions. Since 2000, the number of FLSA lawsuits has more than quadrupled.

There is no single reason for this spike in wage and hour claims over the last decade. The most likely culprits, however, include the internet (along with social media) and plaintiff's attorneys who seek out these lawsuits. Ten to fifteen years ago, it was hard to find out if you were misclassified or whether you may have a wage and hour claim. Now, if you type in "overtime violation" on google, there are nearly 6,000,000 results, many of which are plaintiff's attorneys begging you to call them. Recently, a very well-known employment law attorney who represents only employees admitted that all new clients are asked "how were you paid" in their initial consultation.

Regardless of the reason for the increase, the fact is that the FLSA continues to be one of the most significant risks for employers. Every employer should strongly consider an arbitration agreement with a class and collective action waiver. In addition, employers need to be evaluating their exempt positions on a regular basis, and placing policies and procedures in place to require reporting of any work that is completed off-the-clock.


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