A friend recently sent me some statistics on FLSA filings in federal court. They confirm what many employment law practitioners have observed -- that the boom in Fair Labor Standards Act litigation that started several years ago in Florida is continuing, and is spreading to other parts of the country.
In 2010, 6,785 FLSA cases were filed in federal courts nationally. Based on 2011 figures, it appears that this number will be about 6,900. About 2,200 of those cases will be filed in Florida, representing about 32% of the national total, about the same percentage as in 2010.
Roughly the same number of FLSA cases were filed in Florida federal courts in 2008. But in 2008, Florida’s share of FLSA cases was nearly 45%.
The increase in federal FLSA filings is occurring in other states, as plaintiffs’ lawyers have figured out that employers frequently violate the FLSA, and that plaintiffs are entitled to attorney’s fees if they prevail. These two factors, combined with the expense of litigation in federal courts, make early settlements the usual method of resolving FLSA cases, especially single-plaintiff cases where the alleged damages are modest. Settlements breed more litigation. And the beat goes on.
One trend that is not revealed in the federal statistics is the practice of filing FLSA lawsuits in state court. I have seen more of this in the last year, as plaintiffs’ lawyers have grown weary of trying to justify their fees to federal judges. (In the Eleventh Circuit, as in most jurisdictions, FLSA settlements that involve the compromise of a claim have to be approved by a judge or the U.S. Department of Labor.) Plaintiffs’ lawyers reason, with justification, that it is easier to have a settlement approved by a state court judge. Defendants often benefit as well from settling the case in state court. For example, several federal judges won’t approve FLSA settlements that require confidentiality. I’ve not yet heard of any state court judge that has rejected an FLSA settlement for this reason, or for any other reason.
Will all of these trends continue in 2012? In a word, yes. I see nothing on the horizon that will slow them down.